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
30 April 2009

The Scorpions saga continues, but to no avail?

Hugh Glenister is lodging yet another court application to try and have the legislation abolishing the Scorpions overturned. After reading the papers submitted to the Court I am rather skeptical that this new application will be successful. Glenister’s main argument is that the legislation was passed because the Scorpions “has been too effective when it comes to investigating various high-profile members of the ANC”. He contends that the decision was taken “in order to protect various ANC members from current and future investigations by the DSO [Scorpions]”.

If he could show this to be true, so the argument goes, the decision would be in conflict with the Rule of Law which requires that legislation has to be “rationally connected to a legitimate governmental purpose” and could be declared invalid by a court of law. This is because a decision solely aimed at protecting ANC members from investigation and prosecution would not qualify as a “legitimate governmental purpose”.

This is a good constitutional argument but the problem is that it would be almost impossible to show that there was no legitimate governmental purpose for abolishing the Scorpions. The legal test is not whether the decision was wise. Even a catastrophically stupid decision will be constitutionally valid unless it could be shown that the only reason it was made was for an ulterior purpose.

The government has provided several legitimate – if rather unconvincing reasons – for the abolition of the Scorpions and a court will not be able to second guess these reasons in the absence of “smoking gun” evidence showing that the only reasons for this decision was to protect Mr Zuma or other criminals within the ANC. The separation of powers requires a court to be circumspect when considering declaring legislation invalid on the basis that it was in contravention of the Rule of Law.

After all, judges are not democratically elected while members of Parliament are. It is therefore not for a court to correct the mistakes made by the legislature. It is for the electorate to correct the mistakes by throwing out the incumbent government who made the disastrously stupid decisions which will make us all suffer more from corruption.

A more promising line of argument presented in the papers is that some of the members of Parliament who passed the legislation should not have taken part in the decision because they had been investigated – and in some cases prosecuted – by the Scorpions for their role in the Travelgate scandal. This, so Glenister argues, constitutes a conflict of interest.

It is clear that it would have been wise for those MP’s with a conflict of interest to have recused themselves from the proceedings. The decision would have had more legitimacy if they had done so and it was clearly tainted by the presence of some of these people in Parliament. But it is not clear whether the Constitution requires those MPs who had a conflict of interest to recuse themselves. One could argue that MPs passing legislation cannot be equated with state officials taking an administrative decision. They are exercising a legislative function and in terms of our system of party discipline follow the dictates of the party leadership.

I for one would be surprised if a judge agree that on this basis alone legislation that would otherwise have been passed validly became invalid. Once again, the separation of powers question would be uppermost in the mind of a judge confronted with this question.

What Glenister’s papers do highlight is the complex and problematic nature of the relationship between the government of the day and the ruling party. Our Constitution is silent on what exactly this relationship should be. The new ANC seems to have a rather troubling view of this relationship as it seems to feel that the government is accountable to the NEC and not to Parliament. The papers note that in January last year Mr Matthews Phosa stated that:

  • “The president of the country takes guidelines, mandates and instructions from the ANC …There is only one centre of power and that is the highest decision-making structure of the ANC”.
  • “The NEC, including the President of the ANC, in effect becomes the representative of the majority of voters between elections. Its task therefore is to instruct the executive and legislative organ of government on issues of policy.”
  • “The President and his or her Cabinet accounts to the NEC of the ANC, as any other structure of Government does”

This view of the party seems deeply problematic for our constitutional democracy as it seems to want to bypass the constitutional institutions such as Parliament when it comes to the accountability of the executive. But it must be conceded that this is a complex question as our electoral system and our system of party discipline clearly require some interaction between the leadership of the majority party and the government.

A balance need to be struck. President Mbeki seemed to have gone too far to the one side and if Mr Phosa has his way the ANC will now go too far to the other side. The NEC of the ANC has a duty to set policy but must then allow the executive to implement that policy as best it can. The ANC NEC must also allow Parliament to do its oversight job over the executive and must not usurp the powers of the democratically elected members of Parliament. After all, the NEC was elected by 4000 people while the members of Parliament were elected by 17 million people, so for the NEC to want to micro manage the executive would be profoundly undemocratic.

In any event, I will be surprised if this new application has any success. The Scorpions is no more and the voters did not see that this will affect the way in which the state delivers services to them, so they did not punish the ANC for this very dumb decision. If opposition parties had done a better job of linking the demise of the Scorpions to the rise of corruption and the deterioration of service delivery, maybe the ANC would have been punished more at the polls.

But this did not happen and perhaps it is not for a court to “correct” the mistakes of the electorate as this will not be in the interest of democracy.

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