Both the constructive disagreement intrinsic to science and the adversarial scrutiny necessary to politics disappear in this invocation of science as the ultimate authority – this trick will become familiar in the coming months. An extraordinary emergency requires extraordinary powers; no one disagrees with that. But it is politics, not science, which grants these powers legitimacy. How long will they endure?
Prof Sandra Liebenberg has a good article in Business Day today in which she also criticises the attack by Johannesburg mayor Amos Masondo on the judgment of Judge Moroa Tsoka in the Phiri water case. Money quote:
There may of course be legitimate debate about whether the judge got it right, and this is an important part of public discourse and debate in a democratic society. As is the case with legislation and policy, court judgments should also be exposed to robust critique and debate. This is fundamental to a vibrant democracy.
However, it is an entirely different matter to call into question, as Masondo has done, the duty of judges to interpret constitutional rights and to grant effective remedies in the cases that come before them. The suggestion that, in performing this role, judges are acting as though they are “above the law” or that they should form a political party if they wish to govern the land undermines the fundamental principle of the rule of law. It also contributes nothing to democratic debate about the meaning and implications of constitutional rights for the governance of our country.
I also totally agree with Prof Liebenberg – following Justice Albie Sachs? – that we should view judgments of the Constitutional Court as part of our democratic conversation. Judges are independent but the courts are one of the three branches of government and their decisions must be viewed in that light.
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Instead of viewing the courts’ role in enforcing these rights as an unwelcome intrusion, Johannesburg should understand that this is part of the “constitutional conversation” between courts, the government and civil society on how best to realise human rights. Rather than detracting from democratic politics, the judicial enforcement of human rights enriches constitutional democracy. The city should view judicial intervention in cases such as Mazibuko as an opportunity for research and reflection on whether its policies are consonant with the Bill of Rights. This will enable a more constructive dialogue on whether we as South Africans are meeting our constitutional commitments to the poor.