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
14 May 2010

Sad reflection on SA media

This week President Barack Obama nominated Elena Kagan to the US Supreme Court. Kagan will have to be confirmed by the US Senate before she would be able to take up her post as the third women on the bench of nine justices. I have been following the debate and discussion in the US in the wake of President Obama’s nomination and it has left me rather depressed about the quality of reporting in South Africa about legal issues and about our courts.

The New York Times this week have had at least two stories each day exploring Kagan’s biography, the response of left-wing Democrats to the nomination, Kagan’s own view about the confirmation process, analysis by legal academics about her judicial philosophy, and even a summary of her statements on important issue with links to the relevant documents.

Last year President Jacob Zuma appointed four new members to our own Constitutional Court after a long process which started with the nomination of more than 20 candidates who were later interviewed by the Judicial Services Commission (JSC). The level of reporting and debate about the various nominees and those eventually chosen was, to say the least, dismal.

One may argue that the media has limited resources and that it could not report extensively on all the nominees. But surely one would have thought that it would at least have tried to find out a bit more about the four candidates eventually chosen to serve on our highest court. These judges have joined the third branch of government – the judiciary – and will wield immense power, yet we know hardly anything about them.

While we know something about President Jacob Zuma and his cabinet and about the leaders in parliament because the media at least sometimes report on their activities and beliefs, we know virtually nothing about the judicial philosophies (if any) of the four newly appointed judges to the Constitutional Court. If one only reads the newspapers and listen to the radio or watches television one might not know whether the appointees are proto-facists or whether they may be fantastically progressive people with a deep concern for the marginalised and vulnerable.

The media focused rather obsessively on the question of whether Judge President John Hlophe would be appointed to the Constitutional Court. There was one good article by my colleagues at the Democratic Governance Rights Units about the interviewing process, but apart from that, one waited in vain for intelligent and informed analysis of what was going on, who was appointed and what it meant for the direction the court might take in the years to come. Sadly, the media failed dismally to inform the public about four people who may very well play a decisive role in declaring invalid laws enacted by a democratically elected Parliament and the actions of our President and his cabinet.

This failure by the media to report intelligently and in an informed manner about the members of the highest court (and also about the decision of the Constitutional Court) is depressing to say the least. We all bemoan the low level of debate and political discourse in our country and point fingers at Julius Malema. Yet, the very media who is supposed to act as a main player in our democracy and has a duty to keep us informed to allow us to make sane and wise decisions, fail us dismally.

In stead of going beyond the headlines to analyse what is happening, we get reports focusing on conflicts and the superficial aspects of the personalities involved. How can we live as responsible and active citizens if we really have no clue what is going on in our country? I probably know more about Najwa Petersen’s murder trial and the kind of clothes she wore to court than I know about any of the four new appointees to the Constitutional Court – and I don’t even read The Voice and Die Son.

Some of this has to do with the rather low standard of journalism in our country. Some also has to do with the fact that the media has not adapted to the fact that we now live in a constitutional democracy in which the Constitutional Court has become a major player whose actions may well have serious political ramifications. While the media still focuses on what happens in parliament or in the Presidency – as if we still live in a system with Parliamentary sovereignty – a major part of what happens in our country and what affects the politics of our country goes unreported.

No wonder the Julius Malema’s of our world thrive.

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