The defence of judicial or other “independence” against so-called “partisanship” is a fly-trap for the bombastic. For the bombastic defenders of “independence”, partisanship is like bad breath: always something that the other person has. Tony Leon, for instance, supported “A free and independant [sic] media,” in his Democratic Alliance Internet letter. The careless inclusion of “DA” in the final syllable of “independent” is hardly non-partisan spelling.
Many make “independence” a mere synonym for government-bashing. David Unterhalter, Leon’s former campaign manager, is a partisan acknowledged in Leon’s collected speeches, Hope and Fear. Judicial transformation creates, he says, “an expectation of executive-mindedness to which judges may, even subliminally, fall prey”. (Thus the vocabulary of Claudia Braude, dread savant of “subliminal” media racism at the Human Rights Commission, lives again in the DA mind).
Unterhalter’s “subliminal” anxieties also mark the great works of RW Johnson, another ideologue who is specifically acknowledged in Leon’s Hope and Fear. On September 3 1987 Johnson wrote of the British judiciary: “English judges are so slavishly executive-minded that it is probably seldom necessary for them to be told precisely what [decisions] the government would like.” Strongman Johnson, an advisor to Neil Kinnock, the then leader of the British parliamentary opposition, knew exactly how to fix the judges: “It will be no good bringing in a Bill of Rights [which will have to be interpreted by the judiciary] unless we do something about our judges. Bluntly, a good number of them need to be sacked or forcibly retired.” There is “liberal” music for Zimbabwean President Robert Mugabe’s ears. “And if we are to have a politically appointed judiciary,” Johnson went on, “let them be recruited from outside the ranks of barristers and their appointment be made the exclusive prerogative of the Parliamentary Opposition.” Music for Leon too.
If Johnson’s reckless reign of terror was indeed the thing to fix the comparatively mild class bias of the British judiciary I shudder to think what schemes the African National Congress could justify to meet the apartheid-drenched illegitimacy of the inherited South African judiciary. Thankfully, Johnson is a figure of fun outside Leon’s immediate circle.
To turn from self-serving DA zealotry to Justice Edwin Cameron is, generally, to pass from loony bin to lucidity. And yet Cameron’s recent comments on “autonomy and independence” offer only wordiness and platitudes. Academics and judges operate, Cameron says, “in submission to the enlargement of truth”, upholding “the centrality, indispensability and unconditionality of the vocational commitment to truth-seeking and truth-telling”. Huh?
The obfuscation thickens when Cameron “explains” himself: “Neither judges or academics exercise power,” he says, so they are immune from “the professional advancement of a partisan view”. Huh? Merely to consider the Oxford don, Johnson, or the Wits professor, Unterhalter, is necessarily to dismiss any alleged academic non-partisanship. Merely to recall the 2000 George W Bush-Al Gore litigation is necessarily to dismiss the alleged powerlessness and non-partisanship of judges. As is widely acknowledged by commentators, the United States Supreme Court installed a brutal presidency by powerfully partisan manipulation of law.
Cameron quotes with sentimental approval Thomas Jefferson’s description of the judiciary as “the least dangerous branch of government”. He ought, at least, to confront The Least Dangerous Branch (1962) by Alexander Bickel, a liberal exposition of how judges blend a “counter-majoritarian” role with those “passive virtues” that save the courts the scorn that arises when courts unduly trespass upon legislative and executive spheres.
Rather than simply sentimentalising Jefferson’s comment, as does Cameron, Bickel knew that the judiciary could indeed be dangerous, as in striking down Franklin D Roosevelt’s New Deal legislation. Unlike the nuanced Bickel, Cameron offers one-sided dogmatism: “The very concept of the ‘ivory tower’ confers public standing, since it is precisely the distance from the processes and exercise of power that vests academic insights and pronouncements with credibility and hence authority.”
This is less a line of reasoning than a string of contestable assertions that betray a startling naivety about the realities of power. “[O]ne of the serious illusions we live under,” says Noam Chomsky, “which is a major part of the whole system of indoctrination, is the idea that the government is the power—and the government is not the power, the government is one segment of power. Real power is in the hands of the people who own the society; the state managers are usually just servants.”
Hence Nadine Gordimer rejects Cameron’s ivory tower ideal. The “ivory tower” suggests “the poached tusks of elephants” says Gordimer, “the profits of exploitation of an African resource, a fit symbol of tranquility and comfort gained, anywhere and everywhere in the world, by the plunder of the lives of others”.
Is “plunder” too strong a word? “The spirit still exists in the [pharmacy] industry to ‘Codesa’ [Convention for a Democratic South Africa] this thing. To go into a room and say, don’t come out till you have a solution.” So said Trevor Honeysett, Big Pharma’s leader, after his recent drug pricing victory, in the very Court where Cameron serves. Having won a “legal” victory Honeysett openly pursued a “political” settlement. Honeysett wants a Codesa — but we already have a Constitution! — and he wants it behind closed doors.
When Halliburton pulls such stunts in Washington, the Mail & Guardian correctly protests. But at home, where ANC-bashing cross-dresses as radicalism, Honeysett is a media hero.
Ronald Suresh Roberts is writing a book about President Thabo Mbeki and his intellectual tradition