In Independent institutions key to rights, Geoff Budlender SC lamented the erosion of our human rights culture by what he regards as questionable appointments to independent institutions such as the National Prosecuting Authority and the judiciary. He concluded that “we are now in the midst of a struggle about whether we will remain a genuine constitutional democracy”.
There is much in Budlender’s piece that one agrees with, in particular that independent institutions should be accountable and that persons of integrity should be appointed to these important posts. Our views diverge when he equates a dedication to individual human rights with a commitment to “our constitutional project”. Our constitutional project is a much more complex proposition.
The Constitution was drafted in the context of opposing interests and, some would argue, divergent aspirations. This was unlike, for instance, the United States Constitution, which was crafted by a fairly homogeneous group with the same political ideology. Our Constitution is designed to balance the competing rights of the individual with the aspirations of the common good or “commonwealth”.
Unlike the US Constitution, most of the rights in our Bill of Rights have “built-in” limitations and are subject to the general limitations clause. This clearly juxtaposes competing societal interests, which wax and wane.
In the Soobramoney case, the first Constitutional Court took the view that the individual’s right to life and dignity had to give way to the right of the executive to prioritise available resources in the treatment of diseases that afflicted most people in society.
A different approach followed in Grootboom and successive cases, in which land-invading communities had to be assisted ahead of those who had waited for government housing for many years.
No matter one’s view, none can doubt that all these decisions are equally legitimate in our constitutional dispensation. The waxing and waning of individual and societal interests are apparent in the jurisprudence of our courts and this, I contend, is correct in a society as diverse as ours.
Our own human rights culture is not derived from the doctrine that the individual always trumps the commonwealth; neither is the opposite viable. Our courts have great latitude between these polarities and often make difficult determinations when other constitutional mechanisms have failed to resolve these complex competing interests.
In testing for appointment to the Bench, the first Judicial Service Commission was right to probe candidates’ human rights records: we had just emerged from a situation that the world accepted was a crime against humanity.
Many lawyers and judges were complicit in propping up apartheid, as John Dugard wrote, and as the Truth and Reconciliation Commission showed. Many had practised at a time when our laws (as they applied to the majority) were designed to oppress.
Today, lawyers who aspire to the Bench have for 20 years applied laws compliant with values such as equality and dignity. With the passage of time, probing professional commitment to constitutional values, though important, is less revealing of the aspirant’s commitment to these values.
The Constitution guides the JSC in testing candidates’ suitability. It enjoins courts to apply the law impartially. This, read with the rights of litigants to a fair trial, offers insight into the fundamental qualities a judge should possess in the post-apartheid state.
Simply put, the judge must inspire confidence that the disputing parties will have a fair hearing and that the verdict will be free of undue bias or predisposition. An impartial, fair-minded judge is required by the Constitution, whether the disputing parties are each acting in their own interest or one of the parties is the state, representing the interest of the commonwealth.
It is not just fair to test the appreciation of this change in orientation when a lawyer, who is ordinarily charged with representing only one side of a dispute, aspires to the Bench – it is a constitutional requirement.
The record shows that I, as a commissioner of the JSC, far from regarding “a strong commitment to human rights with suspicion”, commended the relevant candidate for placing his lawyering talents at the disposal of the indigent, then offered him the opportunity to address the JSC on the constitutional requirement of impartiality. (Incidentally, this candidate responded well enough to allay my concerns and I voted to recommend his appointment to the Bench.)
I am unabashed about this probing, for the reason above, but also because I am increasingly disturbed by the subtle – and sometimes not so subtle – proposition creeping into our discourse, that anyone who is predisposed against the state is ideally suited for judicial appointment or for any position in a chapter nine institution, because this predisposition is evidence of their “independence” and commitment to human rights.
All public organs of state must uphold the Constitution and the law. Each strives to operate within these parameters. I disagree that only independent institutions “hold the key to a rights-based culture”.
The real transformative task of our era requires that the administrations of the different spheres of the government operate in a rights-based framework. Courts and chapter nine bodies are constitutional safety valves and cannot by themselves forge a rights-based culture within the apparatus of the state.
Budlender states: “I cannot restrain myself from noting that [Fatima] Chohan’s department is notorious for repeatedly callous disregard of human rights, particularly those of refugees.”
In failing to restrain himself, Budlender amply makes my point. Viewed from the position of a lawyer, he clearly holds a frankly distorted view of the achievements of the department as a whole and in our refugee functions in particular.
Hypothetically speaking, should Budlender aspire to the Bench, I trust the JSC will ask him how he hopes not to be asked to recuse himself in any matter in which the department of home affairs is a party.
Otherwise, I cannot fault his attitudes, constructed from his perspective as a lawyer whose task is to represent his clients to the best of his ability and, moreover, because the plight of many who come to our shores and apply for refugee status will melt the most hardened of hearts.
The day before Budlender attacked the department’s treatment of refugees, the United Nations High Commissioner on Human Rights, António Guterres, at the plenary of the executive committee of the United Nations High Commissioner for Refugees in Geneva, thanked South Africa for improving efficiencies in refugee processes (more than 68 000 applications were processed last year).
He acknowledged South Africa’s generosity of spirit and solidarity with the asylum-seeking and refugee communities. He confirmed that, for at least the five years prior to 2013, South Africa received the largest number of asylum-seekers anywhere in the world.
Guterres’s perception is that of the man in charge of refugee communities around the world – his is, one may argue, a more commonwealth perspective. – Fatima Chohan, deputy minister of home affairs