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
1 July 2008

In defence of the Human Rights Commission

I must say, ANC Youth League President Julius Malema does have chutzpa. Yesterday he attacked the Human Rights Commission (HRC) — an independent body as defined in the constitution — for calling on him to retract his “shoot to kill for Zuma” rhetoric. According to The Times:

The commission had called on Malema to apologise for undermining the judiciary and inciting violence, but the firebrand has instead taken a swipe at the commission, questioning the “calibre” of its leadership and calling on it to “rise above petty politics and execute its mandate diligently, without fear or favour”.

“Statements attributed to some of its senior executives send a worrying signal about the calibre of leadership at the helm of such important institutions,” Malema said.

This is a classic tactic of the political thug: attack the opponent and accuse them of exactly that which oneself might be guilty of and pretend that one’s own weaknesses belong to the opponent.  It is of course exactly because the HRC is acting without fear, favour or prejudice that it had the guts to criticise Malema for his outragous statements which have undermined one of the pillars of our democracy.

It is also because the HRC is led by a strong and principled man like Jody Kollapen that it took this stand despite the fact that others inside and ourtside the ANC seem to be intimidated into silence by the thuggery of Malema and his ilk.

It is really, really, rich for Malema to suggest that the HRC was acting in a way that was somehow politically tainted and that it was undermining its own credibility. If the HRC was going to act in a politically expedient way it would merely have kept quiet out of fear of being savaged by Malema and his ilk (like so many others – including hero Jacob Zuma – have done). Instead the HRC spoke up for what is right, namely that no one in a democracy should talk about killing others in defendece of a political leader or for a political cause.

Last year a committee of Parliament chaired by Kader Asmal released a report (full disclosure: I was involved as a legal advisor for that committee) on the Chapter 9 institutions such as the HRC after an exhaustive overview of all these institutions. It found that the HRC was by far the best run, most principled and cost effective body of the lot and praised the HRC for doing so much with so little money. (Unlike the Public Protector which has no reputation to speak of.)

Malema has clearly not read this report or he would know that the HRC takes up many human rights issues and often treads on the toes of those who are economically or politically powerful. This includes white farmers and business men as well as black politicians. It tries very hard to fulfil its mandate to assist the poor and the marginalised to vindicate their rights and to speak out about human rights outrages like the unconsciounable comments made by Malema.

The HRC is quite fair and principled – unlike the ANC Youth League – and should be praised for promoting respect for human rights. One may well ask what the ANC Youth league has done (except bleat on like brainwashed sheep about the “abuse” of JZ’s rights) to promote and protect the human rights of its constituents? What actions have it embarked upon to protect teenage girls from predatory teachers; to protect youth on farms from being exploited by racist farmers; to protect youth from discrimination in the workplace; to protect youth against the charlatans who sell quack remedies as HIV cures?

Yes, not much. Besides the last time I checked Jacob Zuma was not a youth – although he sometimes behaves like one – so I am not so sure why they are gaaning aan about him like that. Maybe they should worry less about him and more about the real problems of their constituents. But that would require hard work and principles and I doubt whether Mr Malema would be able to muster either.

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