In times of crisis, the principles that underpin our rights-based constitutional dispensation are going to be tested. The principle of the separation of powers between the executive, legislature and the judiciary is one of these. The Covid-19 pandemic has seen the government exercise powers it has never used before. Parliament has been suspended. The courts have been partially closed.
Even in the best of times, there is an inherent tension between the three arms of state. This is by design and, when that tension spills into the public domain, it is something that the media reports on — not to be sensational but because it is a reflection of how our constitutional democracy is doing.
The letter from the chief justice to the justice minister that the Mail & Guardian has reported on this week gives the public a glimpse of how this tension can manifest in the worst of times, with the chief justice flexing on the minister about draft directives for the partial closure of courts.
The office of the chief justice this week questioned whether it was in the public interest to report on the chief justice’s letter, which was confidential. We believe that in times where the executive has — albeit justifiably — seized the reins of the state, the media has an even greater responsibility to monitor and report on how our constitutional principles are faring.
We are not in a state of emergency — not yet, at least. No matter how serious the crisis that we face, the government does not have free rein to do whatever it wants to contain the pandemic. In a constitutional democracy, it can never be a free for all. Even under a state of emergency, it is not a free for all. We have already seen deeply disturbing abuses of state power by our police and army. They are not acceptable — whatever the circumstances.
In this particular instance —with the partial closure of the courts — it is important to remember that the separation of powers in South Africa is not absolute. In the first certification judgment, the Constitutional Court said that, by design, the separation of powers “anticipates the necessary or unavoidable intrusion of one branch on the terrain of another”.
The Constitution, in our view, gives the minister of justice a role to play in the administration of courts, as long as he does not interfere in the judiciary’s core role — to hear and decide the cases before it. In times of crisis, the role of the executive in regulating the administration of courts may justifiably be augmented.
The chief justice’s flex in this instance was, perhaps, unnecessary and the tone of the letter was unfortunate. But, as a general principle, the judiciary should be flexing — and so should Parliament.
And we — the media — should be watching and informing the public about it.