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
13 June 2008

On the President’s budget vote

President Thabo Mbeki struck me as a lonely and forlorn figure this week in Parliament as he delivered his budget vote speech. I attended the proceedings in Parliament on Wednesday with a group of American students and it was striking how desultory and isolated the President appeared. Even when Sandra Botha, leader of the opposition in Parliament, tore into the President for his lack of leadership the ANC benches remained eerily quiet, listening almost respectfully as Botha lambasted the President for his actions or inactions on Pikoli, Selebi, the electricity crisis, the xenophobic attacks and of course Zimbabwe.

It therefore fell on our President to defend himself against the vigorous attacks by opposition parties who mostly argued that the President has failed in providing decisive leadership on many of the important issues of the day. Sadly, I do not share the view of some readers of this Blog that the President’s response was inspiring or that it rose to the occassion.

Instead of being Presidential, he came across as churlish and sarcastic. Instead of bold and inspiring he displayed the kind of petty, thin-skinned defensiveness for which he he has become so famous – or should I say imfamous.

The heart of his speech centred around criticism regarding his handling of the situation in Zimbabwe. Said our President:

Neither Hon. De Lille and Botha spoke of their own responsibilities as such leaders, content to perform on the public stage as militant critics and vigilant watchdogs. As I sat and listened attentively to what they had to say, I asked myself the question – when will they accept their responsibility to lead not partisan factions, but the nation!

If I may betray a confidence, at the close of the Debate yesterday evening, I had a short discussion with the Deputy President of the ANC, the Hon Kgalema Motlanthe, and expressed this concern.

In response, he said – there will always be some people who call themselves leaders but are content to curse the darkness, while making absolutely no effort to light the candle!

Take the matter of the role of our country with regard to our important neighbour, the Republic of Zimbabwe.

It seems to me perfectly obvious that one of our principal tasks in this regard is to assist the people of Zimbabwe to find one another with regard to the resolution of the immense problems they face.

There are some farther afield from us who choose to describe us as a so-called Rogue Democracy, to the absolute delight of the Hon Rev K.R.J. Meshoe, because we refuse to serve as their subservient klipgooiers against especially President Robert Mugabe.

Given all this, the Government I am honoured to lead will continue to engage the Zimbabweans to convey to them our views and feelings about any matter we believe is fundamentally or otherwise at variance with processes that must respect the will of the people.

We will continue to insist that the people of Zimbabwe must have the possibility freely to choose their leaders and Government and refuse to participate in projects based on the notion that we have a right to bring about “regime change” in Zimbabwe.

We will also continue to argue that the people of Zimbabwe will have to unite to extricate their country from the economic crisis in which it is immersed, and that we will contribute everything we can to support the realisation of this objective.

Maybe I am wrong, but this passage seem to suggest that President Mbeki has a rather undemocratic view of democracy. Some might say President Mbeki’s view of democracy is based on African principles of ubuntu or perhaps a pragmatic understanding that in countries like South Africa and Zimbabwe the ordinary competitive style of democracy will not work.

But I worry that his vision of democracy is based on the idea that what is needed in both countries are not real democracy in which different parties put forward alternative visions about what kind of society we want and how we want to be governed. Instead, he seems to suggest that all people in our respective societies should unite behind one vision and should act as praise singers for the revolution. Even when that revolution had been high-jacked and perverted by a person like Mugabe or even if that vision had been soiled by petty squabbles and the need to protect dodgy or even corrupt friends like Jackie Selebi and Tony Yengeni and even when the leader of that vision had time and again lied to the nation.

In his vision I see very little place for and understanding that democracy thrives with robust debate and criticism – along with responsible leadership of opposition parties who should be willing to praise good deeds and work together with the government of the day.

Is it really realistic or morally defensible to argue that what is needed in Zimbabwe is for the long suffering and oppressed people of Zimbabwe to unite with the tyrannical regime of Robert Mugabe to solve the problems of that country? How does one unite with a group of murderous kleptokrats? Why should one – as a matter of morality – be required to unite and therefore by implication why should one be stopped from competing with or criticising those very people who have run the country into the ground?

I agree that a delicate balance should be struck in a heterogeneous society like South Africa between criticising that which is wrong and to help build a new society. I do not think opposition parties always get that balance right. But what I heard from the President is that criticism is illegitimate and that, in the name of unity, we should all become praise singers of the leadership of our country – no matter how they act or fail to act to protect our interest and to build a better life for all.

But acting as praise singers for the government of the day would often be irresponsible and opposition parties would fail in their constitutional duty if they did not point out mistakes of the government and did not vigorously criticise the President if the President fails the nations.

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