Comment and Analysis

The darker side of conservatism

Eusebius McKaiser

Gauteng Judge President Bernard Ngoepe has come out of the conservative closet with his recent critique of the Constitutional Court's liberal history.

Gauteng Judge President Bernard Ngoepe has come out of the conservative closet. In last weekend’s Sunday Times he set out to critique the Constitutional Court’s liberal history.

When a senior judge chooses such a public space, rather than the more established jurisprudential avenues, their remarks should be taken particularly seriously. The opinion piece therefore merits direct engagement across the print media and beyond.

I will summarise his main claims—which are, at their core, a defence of conservatism—before disagreeing sharply in defence of the liberal alternative.

First, Ngoepe says that constitutional term limits are designed to ensure that we elect judges who will rethink previous cases. The point of bringing in “fresh minds” cannot be to “rubber-stamp prior judgments” or “simply [to] regurgitate what was held before”.

Translation: the doctrine of precedent is so September 10.

Second, he points to “challenges” the class of 2009 will face. One is to respond to the “level of crime tolerance in this country”. He notes that “the courts have in some respect[s] gone overboard”. We can only surmise—because it is cloaked in linguistic haziness—that Ngoepe’s point is akin to Police Commissioner Bheki Cele’s belief that criminals have too many rights.

But we are to rest assured that the judge president is not advocating a “populist interpretation of the Constitution”. Phew—thanks for the reassurance.

Third, Ngoepe takes issue with the “values” of the Constitution. The argument hides in a rhetorical question: “Should we go to Washington, Canada or London and ignore as points of reference the values as perceived by, say, tribesmen and women in the rural areas?”

The worry is that the liberal values that underpin the Constitution are unrecognisable or inherently alien to the majority of South Africans.

The implication is that we should undo this “fact”. Same-sex marriage, the death penalty and corporal punishment are just some issues that were presumably handled too liberally by the court and which should be reversed.

Finally, Ngoepe extends his analysis to the general relationship between the judiciary and the executive, asking whether “judges have not usurped executive authority, particularly by substituting their decisions for those of officials”. Long live executive sovereignty, long live!

Ngoepe is mistaken in thinking that the relationship between the executive and the judiciary deserves revisiting. There is a good reason why we settled for constitutional supremacy over executive sovereignty. We did so to ensure that social justice can be achieved. It is a safeguard against executive arrogance. A victory such as that achieved by the Treatment Action Campaign, through the court, would not have been possible if the exercise of “executive authority” could not be reviewed legally.

Constitutional supremacy is not an intellectual indulgence of leftie lawyers who held too much sway during the Codesa talks. It is a doctrine that says: “Never again shall we allow politicians to ignore the material interests of citizens—even when they wear the label ‘elected official’!”

Ngoepe distorts the rationale behind term limits. Of course “fresh minds” are useful when looking at any social issue. But it is wrong to imply that the Constitutional Court is filled with recalcitrant liberal fascists. Although it is true that most of the decisions of the Constitutional Court have indeed been substantively liberal, this is not always the case.

For example, in the judgment on same-sex unions, the majority of the Bench (barring Justice Kate O’Regan) was rather tame in challenging Parliament and the executive. Instead of allowing gay people the remedy to access the marriage regime instantly by reading gender-neutral language into the Marriage Act, the court allowed politicians a year to find their own remedy. This showed, some said, that the court sensitively balanced its constitutional oversight role with respect for Parliament’s elected mandate for designing social policies. Although I disagree with the court’s remedy, the case exposed the conservative lie that the Constitutional Court judges are unfailingly liberal.

We should all admit what is really at stake in this debate. There is a battle between two ideologies, conservatism and liberalism.

Roughly speaking, a conservative ethical outlook resists change to the content of cultural and social norms. Traditions are seen as crucial parts of our individual and social identities. Their erosion is undesirable. On a macro level, the role of the state is to preserve these traditions — and perhaps even to promote them.

Liberalism places the individual at the heart of society. Although not inherently opposed to communitarian notions such as “family” and “tradition”, liberalism tells us to be wary of state power. Government should maximise space for individuals to live the kinds of lives they want to live. No particular moral doctrine is regarded as superior—barring some general, minimum set of rules and principles that overlap between reasonable people.

Ultimately, Ngoepe is a conservative. But the problem with conservatism is that it assumes it has a monopoly on what is morally desirable. It stifles the space for difference. Liberalism, although not value-neutral (as many liberals wrongly think), is the second-best option to a value-neutral society. Why? Because it is not prescriptive. Rather, it allows the diverse range of beliefs and cultural practices in South Africa to flourish within a space of mutual respect. Not unlike democracy, liberalism is the worst ideology except for all those others that have been tried.

Eusebius McKaiser is a political and social analyst at the Centre for the Study of Democracy

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