The irony with the African National Congress statement on the judiciary is that the party is now finding fault with the very system it introduced — a system flowing from the Freedom Charter. Â Last week’s comments by the ruling party were made in the context of an extensive discussion on the charter.
The Charter promised a Bill of Rights.
About 30 years later the ANC issued a set of constitutional guidelines, which drew on the Freedom Charter to fashion a document for a constitutional democracy.
When the country achieved this goal, the role of the ANC and its political programme sourced in the Charter was the key to this achievement.
Flowing from this model came the institution of an independent Constitutional Court as the apex of a system of courts that would interpret, develop and enforce the Bill of Rights as the central pillar of the new constitutional state.
A court in a constitutional framework operates as a vibrant arm of the state within the context of the principle of separation of powers. Not only does a court seek to give content to the rights contained in the Bill of Rights by searching out the animating values of the Constitution read as a whole, but in doing so it seeks to ensure that the exercise of public power is held accountable to these values.
The task of courts is to develop a body of law that reflects certain values.
When the legislature or the executive decides to act in a manner that violates these rights so interpreted, the courts have a duty to set aside such laws, thereby reminding the other arms of the government that this is a rights-based democracy and that these rights and the values that underpin them do not inevitably mean what a transient majority, even if large, might think.
This was the system that the ANC ensured formed the basis of our governance. What then are we to make of the statement of January 8 that the judiciary of this country has a collective mindset that is not in line with the “visions and aspirations of the millions who engaged in the struggle to liberate our country from white majority domination” and that the judiciary must change its performance?
In a constitutional democracy, the judiciary does not interpret the Constitution by way of ascertaining the values of the people by means of an opinion poll. It follows an interpreted framework.
As Chief Justice Arthur Chaskalson wrote not too long ago: “The Constitution offers a vision of the future. A society in which there will be social justice and respect for human rights, a society in which the basic needs of all our people will be met, in which we will live together in harmony, showing respect and concern for one another.”
The ANC statement can mean one of three things: firstly, that either the judiciary is not, as an institution, building a body of law that reflects this vision, or, secondly, that the vision spelt out by the chief justice and numerous other judges is not faithful to the Constitution.
Thirdly, it could be arguing that the task of the judges is not to read the Constitution as a vision sourced in the values contained in the text, but rather as what the government (which enjoys an overwhelming measure of public support) determines to be the binding constitutional vision for the country.
There can be little quibble with the argument that a number of decisions of the courts, at all levels of the Bench, have not given adequate content to the overall vision set out by the chief justice. Indeed some of the more distressing examples have been analysed in this column during its evaluation of the first decade of democracy.
But there have been celebrated cases where the courts have promoted the needs of the masses in the teeth of government opposition: the Treatment Action Campaign (enforcing national HIV/Aids drug treatment) and the Metrorail judgement (which placed the onus for safe transport on the state) are two examples. There are others.
If the problem is that the judicial record is inadequate, then this needs to be spelt out in detail. The judicial record is not self-evidently reactionary; to the contrary, huge progress has been made.
There is nothing in the statement of January 8 that takes issue with the constitutional vision outlined above.
So that then leads to the third possibility. Judges cannot simply defer to the will of a transient majority or a democratically elected government where law or policy passed by the latter is at war with the Constitution. That does not mean that the judiciary should subvert the political programmes of the government.
Our Constitution provides that the government can override a constitutionally entrenched right so long as it can justify its actions in terms of the limitation clause. If this principle of justification before the courts is not politically acceptable, then the very idea of a constitutional democracy is imperilled.
Hopefully the statement involves no more then an unsubstantiated complaint about the judicial record.
There is the further concern in the statement’s view that only black judges can produce the body of law needed to be congruent with the vision contained in the Constitution.
That the judiciary must become far more reflective of the demography of the country is obvious; that the Freedom Charter never proclaimed that enlightened thought and a commitment to social justice was the exclusive preserve of one group in this country is equally obvious.