President Thabo Mbeki’s announcement of the retirement of Chief Justice Arthur Chaskalson means there will be a new incumbent by the second half of this year. He or she will inherit a right mess. A few weeks ago it might have been hoped, thanks to the adroit handling of the African National Congress’s January 8 statement by Judge Chaskalson, that the crisis had passed.
But within a month Judge President John Hlophe’s “confidential” report on racism in the Cape High Court was leaked to City Press. Recently the minister of justice and constitutional development’s special adviser, Shadrack Gutto, revealed in a report that the government would use the Hlophe report to justify measures to control judicial behaviour beyond internal procedures by which judges can render their peers accountable (“Judiciary faces shake-up”, February 18).
As Judge Chaskalson noted in response to Gutto (“Unjustified criticism”, February 25), much work has already been done between the judiciary and the Department of Justice and Constitutional Development to create a mechanism for supervision of the judiciary without eroding the separation of powers. But for Gutto, is it a case of “Why allow facts to get in the way of a touch of populist rhetoric?”
So we are back to January 8. The logic appears to be that the Hlophe report proves the racist character of much of the Bench and that, hence, too many judges have the “incorrect collective mindset”. So there is a need for intervention to cure these impediments. As an editorial of this newspaper noted (February 18), the racial character of the judiciary is changing with all due speed. Appointments are made by the Judicial Service Commission on which the ANC has a significant voice and all but three heads of court are black. If the pace of change is not to the ANC’s liking, who is to blame? Surely not Tony Leon this time.
In addition, as the editorial observes, most South Africans experience the judicial system through the magistrates’ courts. If the examples trotted out to prove racism on the Bench are examined, they relate in the main to sentencing practices in the magistrates’ courts, but no mention of the need to deal with these courts is made by Gutto or the other critics of the judiciary. Why not, if the paramount concern is delivery of non-racial justice to the majority of citizens?
Of course racism must be rooted out, but viewed in the context of the broader debate on the higher courts, it is justified to ask whether a populist rhetoric is obfuscating a bigger question: the tension inherent in a constitutional democracy between a judiciary and an executive.
After the ANC statement there was much nonsense spoken about the inevitability of a pro-executive judiciary in a country emerging from racist or colonial rule. Framing the debate in terms of a stark opposition between an activist judiciary, which assumes the role of a policy-maker, and a subservient pro-executive judiciary, is unhelpful. Our Constitution entrenches the doctrine of proportionality. Courts must require of the executive and the legislature that any properly proven erosion of a constitutional right is justified. The court will then seek to determine whether the erosion of a right or failure by the state to implement a right is justified.
This model was never designed to subvert the will of the people or the policies of a party overwhelmingly elected into office. It was intended that all citizens, particularly the vulnerable and impoverished, have a means to ensure that we are run by a government that can be called to account and be compelled to justify its action.
Let us confront racism at the Bar and Bench immediately. The sooner we have a representative judiciary the better, although that means that many of the voluble critics must now make themselves available for appointment. But even if all this is done, the question will remain. Is there a national commitment to the idea of a constitutional democracy, where the doctrine of proportionality prevails upon the courts to become partners in the development of accountable government?