Recently Chief Justice Pius Langa gave an address on the relationship between the media and the judiciary in which he said he hoped one day it might be possible for our judges to be ”ordinary” men and women.
To be fair, he was responding to a question raising concern about the extraordinary pressure our transition is placing on judges — and journalists — and his speech maintained bluntly that the success of our democratic project would depend largely on the quality of our judiciary and our media.
But an extraordinary court judgement got me thinking about ordinariness — and whether the naturally conflicting roles of the judiciary and the executive do not demand that we always have the benefit of judges with exceptional wisdom, wit and courage.
That judgement was the recent London High Court ruling by Lord Justice Moses and Justice Sullivan. They overturned the decision by the director of the Serious Fraud Office (SFO) to end the investigation into whether British defence conglomerate BAE Systems bribed Saudi officials to secure the enormous Al Yammama arms contract. The ÂÂÂruling is thrilling in the way that only great intellect applied in defence of solid principle can be — but it is also expressed in terms that ”ordinary” people can understand.
Its defence of the rule of law as a foundational value of democratic society (especially in the face of overbearing executive influence) is also relevant to the intense ÂÂÂpressures placed on our justice system — whether in relation to the transformation of the judiciary, the suspension of the national director of public prosecutions, the prosecution of Jacob Zuma, the disbanding of the Scorpions or the attempts by the SFO to seek South African assistance in its investigation of BAE’s payment of ”commissions” in our own arms deal.
To recap the circumstances of the British case: the SFO investigation had led to increasingly shrill claims, first from BAE, then from the ÂÂÂgovernment of Tony Blair, that it would damage British economic, diplomatic and security interests. The director of the SFO, like our national director of public prosecutions, is enjoined to make decisions independently, without fear or favour. Eventually, following claims from Blair himself that the ÂÂÂcontinuation of the investigation would lead the Saudis to withdraw cooperation in the ”war on terror” and thereby place British lives at risk, the director buckled and decided to stop the investigation.
That decision was taken on review to the high court, which has now delivered a devastating indictment of the willingness of Blair’s government to tolerate the ÂÂÂsuborning of the British legal system in the interests of ”national security”. Not coincidentally, the turning point of the judgement relied on information placed in the public domain by the media and reluctantly confirmed by the government — though only through questioning by the judges and the ethical forthrightness of government’s legal counsel.
A London Sunday Times report had claimed that, as SFO investigators were about to access crucial Swiss bank accounts, Saudi diplomatic and security supremo Prince Bandar bin Sultan bin Abdul Aziz intervened. The newspaper revealed that Bandar, himself a beneficiary of the BAE payments, went personally to Blair’s chief of staff and told him that if the investigation was not stopped there would be no new multibillion-pound BAE contract and the previously close intelligence relationship would cease.
As the judges remark: ”The significant event which was soon to lead to the investigation being halted was a threat made by an official of a ÂÂÂforeign state, allegedly complicit in the criminal conduct under investigation and, accordingly, with interests of his own in seeing that the investigation ceased.” TheyÂÂÂcontinued: ”When the threat involves the criminal jurisdiction of this country, then the issue is no longer a matter only for government; the courts are bound to consider what steps they must take to preserve the integrity of the criminal justice system.
”The rule of law is nothing if it fails to constrain overweening power,” they noted, adding that the SFO director’s independent judgement (to drop the investigation) had been nullified by Bandar’s threat. They concluded with a ringing rebuttal of Blair’s rationalisation for exerting pressure on the SFO.
”The Director was required to satisfy the court that all that could reasonably be done had been done to resist the threat. He has failed to do so. He submitted too readily because he, like the executive, concentrated on the effects which were feared should the threat be carried out and not on how the threat might be resisted.
”No one, whether within this country or outside, is entitled to interfere with the course of our justice. It is the failure of government and the defendant to bear that essential principle in mind that justifies the intervention of this court … we intervene in fulfilment of our responsibility to protect the independence of the director and of our criminal justice system from threat.
”On December 11 2006 the prime minister said that this was the clearest case for intervention in the public interest he had seen. We agree.”