Judges are not (and should not be) above criticism. The judiciary is one of the three branches of government and in a vibrant democracy the decisions and actions of judges must be scrutinised, debated and criticised—even harshly if need be.
But the judicial branch of government has a special place in our constitutional democracy because it acts as referee and—in the case of the Constitutional Court—as final interpreter and enforcer of the Constitution.
This means that the independence and integrity of judges must be jealously guarded to ensure that their decisions command wide respect and legitimacy—even when a decision is unpopular, inconvenient or damn well infuriating to some.
Criticism of judicial decisions or the actions of judges should therefore be honest and principled and should not be based on petty self-interest or expediency.
While the independence of our judiciary is partly safeguarded by the institutional mechanisms contained in the Constitution, the judiciary can be said to be truly independent only if all important role players in society respect and protect the freedom of judges to do their job “without fear, favour or prejudice”.
The independence of the judiciary—one of the three pillars of our democracy—is therefore threatened not only when its institutional independence is under attack through proposed constitutional amendment, but also when politicians and lawyers attack the integrity of individual judges in an unprincipled way to gain a short-term political advantage. Over time such attacks will erode confidence in the courts and in the judicial system.
And no matter how ANC secretary general Gwede Mantashe now wants to “contextualise” his charge that the Constitutional Court had gone public with its complaint against Judge President John Hlophe “in psychological preparation of society” for its attack on Jacob Zuma, he was directly assaulting one of the pillars of our democracy.
Mantashe, using a line of attack invented by Paul Ngobeni, argued that the Constitutional Court had breached a long-standing international law principle which prohibits those who lodge a complaint against a judge from making this public.
A quick perusal of the relevant UN document makes clear that such a principle does not exist.
What is required is that the body charged with examining a complaint against a judge—in this case the Judicial Services Commission—must keep the examination confidential at least during the initial stage.
No such obligation rests on those who lay a complaint against a judge. It is therefore difficult not to conclude that this attack on the Constitutional Court is not based on an honest and principled concern for the law, but on a desire to discredit any decision the Court might make that would be to the detriment of ANC leader Jacob Zuma.
Against this background, it is perhaps understandable that proposals by the ANC to radically reorganise the judiciary will be viewed with alarm by those who understand and value the importance of an independent and impartial judiciary for a constitutional democracy.
The ANC document, reported on in the press at the weekend, includes proposals to merge the Constitutional Court and the Supreme Court of Appeal and to create a “judicial council” to assist the chief justice with governance of the judiciary.
The document also proposes that an advisory board, consisting of legal representatives and civil society delegates, draft rules for all courts and that the minister of justice should control the administration of courts, leaving judges only to adjudicate cases.
The document also argues that a complete separation of powers is neither possible nor desirable.
“What is critical is that overlap [between the three branches] must be carefully checked and balanced to avoid usurpation of power of one organ by another.”
In the climate of distrust created by the unprincipled attacks on the Constitutional Court and the leadership of the judiciary, it would be easy to jump to conclusions and to assume that the ANC is planning an all-out attack on the judiciary.
But many of the proposals—while perhaps not wise or well thought through—could be viewed as a genuine attempt to streamline the administration of justice and to provide ordinary people with better and faster access to courts.
It is worrying, though, that the proposals seem to resuscitate the idea that judicial independence merely requires judges to be allowed to decide their cases, effectively leaving the administration of justice in the hands of the minister.
Judicial independence can be safeguarded only if politicians are kept at arm’s length from the administration of justice and from decisions about how to administer the courts.
Recent events have shown that some politicians—given half a chance—will interfere with the governance of the judiciary for short-term political ends. This must not be allowed to happen.
One hopes that the honest and principled membership of the ANC leadership collective understands this and will thwart any attempt by hotheads to usurp the power of judges to administer their courts.
Professor Pierre de Vos teaches constitutional law at the University of the Western Cape