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 November 2012

Some animals are not more equal than others

Any egalitarian-loving communist would be horrified by the suggestion that President Jacob Zuma is entitled to more respect than a working class person living in an informal settlement. Yet, in present day Animal Farm South Africa, where some of the pigs want us all blindly to chant that “all animals are equal, but some animals are more equal than others”, the South African Communist Party (SACP) of KwaZulu-Natal wants legislation to be drafted to protect the dignity of the president to prevent people from “insulting” him. The proposal is both unconstitutional and unconscionable — but perhaps not surprising coming from an organisation that blindly supported Stalin’s Gulag.

KwaZulu-Natal SACP secretary, Themba Mthembu, said on Monday that many countries had realised after a President was appointed that “some respect needs be given to that person”. According to him, President Zuma had been the subject of a “barrage of attacks which were unfair and lacking in fact and truth… We want to prevent criticism, which is an insult to the office of the president. They can criticise, as long as they don’t insult and undermine the head of state.”

It is true that so called “insult laws” are in place in many countries across the world. In Iran, a prominent journalist was sentenced to 16 months in prison in 2010 for calling President Mahmoud Ahmadinejad a megalomaniac. During the authoritarian rule of Hosni Mubarak in Egypt, you could go to jail for four years for insulting the President. In Venezuelan President Hugo Chávez has also used laws against insulting the president to silence his critics in the media.  In Lebanon, a man was arrested in 2010 for calling President Michel Sleiman a “hypocrite” and “the worst kind of failure” on Facebook. And in the Netherlands, there were two separate arrests in 2007 of citizens calling Queen Beatrix a whore. And, in 2006, Poland launched a national manhunt for a man who farted loudly in response to a request from police to show more respect for then President Lech Kaczynski.

But in South Africa, a law specifically protecting the President’s dignity or protecting him from insults is not only completely unnecessary, but would also never pass constitutional muster.

The South African common law already provides for the worryingly expansive protection of the dignity of everyone — including the President. Anyone who believes that someone has infringed on his or her dignity can sue that person for damages.

If the President wanted to sue for the infringement of his dignity he would have to prove, first, that somebody deliberately did or said something, which impaired the President’s dignity. In other words, this aspect of the tests asks how the President himself understood the words, action or the image, as he must show that his subjective feelings were indeed wounded.

However, not every subjective slight of the President’s feelings would have legal impact. Only wrongfully inflicted infringement of his dignity would be actionable. This is an objective test. It requires the conduct complained of to be tested against the prevailing norms of society (also referred to as the current values and thinking of the community) in order to determine whether such conduct can be classified as wrongful. These prevailing norms must be judged with reference to constitutional values and norms and must give effect to them.

These values and norms would include the need to protect freedom of expression and the obvious requirement that politicians could not enjoy absolute protection from being offended or hurt. In fact, I would argue that our law would seldom deem it wrongful for the President to be criticised, insulted or even ridiculed as he is just another politician who has voluntarily exposed himself to the rough and tumble of politics.

This is perhaps why the KwaZulu-Natal SACP believes that the President needs special protection against insults and criticism. But any law that prohibits the rest of us from “insulting” or “undermining” the President would be unconstitutional. Such a law would place a fundamental limit on the right to freedom of expression to protect one person.

This kind of limitation will, however, never stand. The limitation would protect only one person — the President – and would therefore not be a law of general application as envisaged by the limitations clause. One would therefore not be able to argue that such an egregious limitation of the right to freedom of expression is justifiable in terms of the limitation clause, as the limitation clause would not apply.

But even if the limitation clause did apply, the Constitutional Court is almost certain to find that the limitation is not justifiable in an open and democratic society. This is because the purpose of the limitation would be illegitimate. It would be aimed at protecting the President from certain criticism and would elevate the President above other citizens. The limitation would therefore undermine the Rule of Law, which requires that no one should be treated as being above the law and everyone should be equal before the law. When the purpose of a law limiting one of the rights in the Bill of Rights is to undermine the essence of the Rule of Law, such a limitation could never stand.

Moreover, the infringement of the right to freedom of expression would be so severe and the harm it seeks to address so trivial, that no court in South Africa would find that the limitation is justified. This is because a law that provides special protection for one politician — usually the leader of the largest political party in Parliament – from harsh criticism, ridicule or actions which could undermine his status as a politician, would have a chilling effect on free speech. It would send a signal that the President is so special, so exalted, so important, that he cannot be subjected to the normal robust criticism and ridicule that all politicians in a democracy are expected to tolerate. The democratic essence of the governing system itself would be undermined by a law that treats a sitting President more favourably than other politicians also competing for the votes of citizens.

In our constitutional democracy, the President is not entitled to better treatment or more respect than the rest of us merely because he was elected by 400 members of the National Assembly for a term of 5 years to serve as the head of the government. The President of South Africa – whoever it may be — is just another (potentially grubby, scheming and self-righteous) politician and his or her appointment as President does not elevate him or her to a special lofty status, which entitles him or her to be respected by anyone.

While one could argue that it would be polite to show some respect for the office of President, this does not entitle the President him or herself to be respected by the rest of us. The President is our servant, not the other way around. As our servant, he is entitled to be treated with the respect he has earned.

If the President is good at his job and ensures that textbooks are delivered on time and that houses are built and services delivered; if he does not enrich himself or turn a blind eye when his family members and cronies become corrupt; if he demonstrates respect for himself and for the people of South Africa by acting tirelessly to solve our problems instead of solving his own family housing crisis, then all good citizens would respect the President of the country — no matter which party he leads. Decent South Africans would then also be entitled to judge those harshly who fail to respect a President who acts as a true servant of the people. But that is entirely different from demanding that legislation be drafted to protect the President’s dignity.

After all, respect is earned. One cannot legislate it into existence.

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