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
22 October 2008

The Concourt’s wise decision on the Scorpions

For a change a court has handed down a decision just as I had predicted. The Constitutional Court today declined to intervene at this stage to hear arguments about the possible unconstitutionality of the abolition of the Scorpions.

The application, brought by businessman Hugh Glennister and supported by opposition parties and the Centre for Constitutional Rights, requested the Constitutional Court to set aside the decision of the Cabinet to abolish the Scorpions even before the relevant legislation was dealt with and adopted by Parliament. The Constitutional Court did not rule on the merits of the case, but in effect argued that the application was premature as the matter was still being dealt with by Parliament.

In doing so, the Court relied on the doctrine of separation of powers, which is not mentioned explicitly in the Constitution but is assumed to be part of the structure of the Constitution. Although I am not in favour of the scrapping of the Scorpions, the judgement by the Constitutional Court seems wise and astute, as it reflects an appropriate respect by the Court for the other branches of government.

The judgment quoted the following passage from its judgment in Doctors for Life International v Speaker of the National Assembly and Others:

Courts must be conscious of the vital limits on judicial authority and the Constitution’s design to leave certain matters to other branches of government. They too must observe the constitutional limits of their authority. This means that the Judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution.

The Court pointed out that it was being asked to consider a matter that is “presently within the sphere of responsibility of Parliament” and pointed out that the Constitution vests Parliament with the primary oversight function of the executive. The Court is thus being asked to intervene before Parliament has concluded its work.

It found that ordinarily a court will not interfere with the functioning of Parliament, but that a court in South Africa “may intervene if there is no remedy when the legislative process is complete and the unlawful conduct in the course of the legislative process will by then have achieved its object”. To be succesful with such an extraordinary application, an applicant will have to show that the resultant harm will be “material and irreversible”. This, the Chief Justice said, was a formidable burden to meet. Cases that would warrant intervention on this approach would be extremely rare.

That burden was not met in this case. Lawyers had argued that because of the large number of resignations from the Scorpions over the past year, by the time the legislation is passed the Scorpions would have been destroyed. But the Constitutional Court pointed out that it was not clear at the time of the application what Parliament would decide to do. Parliament may have chosen to make significant and substantial amendments to the draft legislation or it may have chosen not to enact the legislation at all.

It was also not clear that the members of the Scorpions have been leaving because of the decision to initiate legislation to scrap the Scorpions. The causal relationship, therefore, between the executive decision to introduce the legislation and the fact that many members have left has not been clearly established.

The appropriate time to bring an application would be after Parliament had passed the legislation to disband the Scorpions. It was only then that the Constitutional Court would entertain the merits of the case .(A case which, in my opinion, is also not very strong.)

I am not a great fan of this kind of application as it attempts to legalise a political issue and creates the impression that political debates about the wisdom of scrapping the Scorpions should be circumvented by an (unelected) court. In South Africa we have a tendency to run to the courts to solve political problems – instead of fighting about the merits of the arguments in the political arena.

This is not good for our politics or for our courts, because it treats voters as passive bystanders and ignores the importance of political mobilisation for the health of a democracy. We want the courts to do out dirty work for us – which places the courts in an untenable position and unecessarily exposes them to attack by unscrupulous politicians.

This judgement signals that the Constitutional Court – although ready to defend the Constitution – will not easily interfere with the workings of the democratically elected branches of government. It demonstrates a respect for the electorate and for the democratic institutions created by our Constitution. I just hope that the media reports correctly on this case and do not blame the Constitutional Court for the abolition of the Scorpions.

It’s the ANC who is to blame for this decision and if people do not agree with it, they should organise protest marches or vote for another party come the next election. They should not attack the Constitutional Court.

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