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
8 February 2007

Xolela Mangcu nails it

Xolela Mangcu hits the nail on the head today in his column in Business Day regarding the FNB saga. I like his idea that we are all afraid of our freedom. Money quote:

We are a paranoid society — afraid of each other, afraid of the name-calling, afraid of losing business, afraid of our own shadows, and afraid of our own freedom.

This will not change for as long as the fundamentals of fear and intolerance are in place. Today it is FNB, and tomorrow it will be somebody else. The bottom line is that those who rule over us do not trust us or respect us enough to let us make up our own minds. Let FNB publish what they will, and trust us to decide whether to go along with it or not. That is the true meaning of freedom.

Of course President Mbeki and the intellectuals in his circle would argue that we do have much to be afraid of because in order to truly transform the state and society, we need to address and attack the hegemonic power of the old guard. Because the reactionary ideas and values of this old guard still hold sway and dictates public discourse to the detriment of true transformation, we ignore it and allow it to flourish at our peril.

Like Mr Mangcu I believe this is an unecessary defensive position to take. In a democracy we cannot by fiat change the balance of forces in society. We have to engage and argue with one another.

If one is the President of a powerful governing party one has a lot of scope to make an impact. But in a democracy one does not get one’s way all the time – even if one is the President.

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