Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
21 November 2006

Democracy can be such a bother

The problem with a constitutional democracy is, of course, that it provides people with a reasonable amount of freedom to do and say what they want.

In a democracy the pesky members of the media report on the improprieties of politicians (both the proven and rumoured variety) without having to fear imprisonment, assassination or closure of their newspaper.

If one is a politician – the President of the country or the head of the Police, say – living in a democracy can be quite a bother. Stuff reported in the media becomes part of the political reality and must be addressed, otherwise voters will inevitably assume that the media reports are correct.

President Thabo Mbeki does not seem to get this last point.

He is reported to have told religious leaders yesterday that they should trust him to do the right thing on Jackie Selebi and added that he did not want Selebi to be tried by the media.

If he has information clearing Mr Selebi’s name he should let us know what it is. He can call a press conference this afternoon and allow journalists to drill him, like they do in the UK and the USA.

By asking us to trust him because he knows best, President Mbeki is acting in a patronising and profoundly disrespectful way.

There is, of course, a vast difference between being convicted of a crime in a court of law, and merely acting in an unwise and suspicious manner. It is therefore disingenuous to say that Selebi is being tried by the media merely because the media is reporting on the fact that he is friends with an alleged mafia boss arrested for murder.

What the media is doing is fulfilling its appointed role in a democracy, namely to inform the public about important matters of national concern.

The Police Commissioner and the President are accountable to us – the people – and they therefore have a duty to respond openly and transparently to this new reality created by news reports. If they don’t, we have a right to assume that they have something to hide.

Yes, it’s a nuisance. Yes, it may tarnish Mr Selebi’s name. Yes, reporting can be sensationalistic. But that is the price to pay for a free press and a vibrant democracy.

Because we live in a democracy we do not have to trust our politicians. We have a right to demand answers and if those answers don’t come, we have a right to fire those in charge.

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