Kader Asmal : A Second Look
It is becoming apparent that a wrong view prevailed when it was suggested, before the transition to democracy, that all existing judges should have to go through a process of reappointment.
I was among those who opposed the idea of reappointment, which was current, for instance, in circles such as the National Association for Democratic Lawyers. I must number myself among those who took the wrong, if somewhat generous, view.
If such a process had been insisted on — as, for instance, happened to directors general in the civil service — no doubt a number of the good and the brave would have sought and gained reappointment, to the general benefit of our land. But there would also have been those judicial time- servers and recalcitrants who became known, during the days of apartheid, for interpreting the law in ways which ran directly counter to accepted standards of human rights. Significantly, the new oath under the Constitution specifically requires judges to uphold and protect entrenched human rights. Things were different before 1994.
The Mail & Guardian, at the end of last year (December 12 to 18 1997), did a major public service in highlighting the political antics of one of those judges who would have had, shall we say, an interesting time should he have gone through the process of reappointment, namely Judge David Curlewis.
He is, no doubt, a most honourable and esteemed person. But he is prone to curiously unjudicial political interventions. In the Moses Sithole case, the judge found it necessary to launch a campaign from the Bench to suggest that the power to hang should be restored to our judges, and he was highly critical of the law-based process which led to capital punishment being excluded. He is wrong in implying that politicians were responsible for the abolition of capital punishment.
By his denunciation of the Constitutional Court’s outlawing of capital punishment, the learned judge has placed himself in the political arena, as your editorial noted at the time. Thus, by his own voluntary action, he forswears the protection that is generally afforded judges, not as a matter of mere courtesy, but as an important part of the democratic process.
Judges, though their judgments and actions can and should be criticised in restrained fashion, should be shielded from the damaging and sometimes destructive attacks reserved for those operating in the hurly- burly of the political domain.
Should Judge Curlewis have been required to offer himself for reappointment, he could have been asked to explain remarks, quoted in the M&G, such as: “The courts of this country have, for over a century, acted fairly and independently and honestly, and independently of improper influence … the courts of no other country surpass our courts and very, very few equal them.”
In view of the uneven administration of justice in this land during the apartheid era, the judicial assaults waged against human liberties, the disgraceful execution of an average of one person every three days for many years, the discrimination that marked the cases involving Pitje, Barend van Niekerk and the Delmas trial, such remarks would provide plenty for a judicial
reappointment tribunal to ponder.
In fact, a rather forgotten tract issued by the Cape-based Civil Rights League headed by Brian Bishop in the early 1980s, The responsibility of judges in applying unjust laws in South Africa, explicitly recalled the draconian provisions of measures such as Section 6 of the Terrorism Act, banning under the Internal Security Act and the extent to which such measures tied the hands of judges — surely involving “improper influence” in its grossest form.
The pamphlet, moreover, called on judges to consider, in issuing their judgments, drawing public and ministerial attention to unjust consequences of applying the law; or even to go further and consider resignation. This rather mild document was almost viewed as seditious by the authorities of the time, and the compilers had difficulty getting it published.
Presumably Judge Curlewis, believing as he did that our courts had no peer in the world, thought differently. He was part of the approach wherein judicial discretion in detention cases was exercised in favour of the state, rather than in defence of the individual. He is also presumably somewhat at odds with the top five judges who presided in South Africa since the transition and who have recently acknowledged to the Truth and Reconciliation Commission (TRC) the “primary role played by the law and the profession in maintaining apartheid and the generally inadequate response from judges and lawyers when faced with apartheid injustice”. They spoke about black people’s justifiable sense of injustice and anger at the failures of the law and the legal system to provide protection during the years of apartheid.
Judge Curlewis has, according to the M&G, written to the TRC — a body described recently by another judge as the “so- called” TRC — turning down the idea that he should give evidence. Denying this body his eccentric political views is a pity. He sees in that process a possible compromising of the Bench, noting in his letter to the TRC: “If you are a politician you will not understand this, let alone care about it.” His own difficulty, it seems, is an inability to understand the judicial function which includes upholding and protecting the Constitution and the decisions of duly constituted bodies under the Constitution.
There is therefore a strong case for a duly constituted complaints body to investigate allegations of incompetence or partisanship or bias by the judiciary. The Judicial Service Commission could perform this function.
— Professor Kader Asmal, a member of the national executive committee of the ANC and Minister of Water Affairs and Forestry, formerly taught human rights law