Judges must not be swayed by thugs when making judgments

When we rightly chose to replace parliamentary sovereignty with constitutional supremacy in 1994, little did we know that the constitution’s supremacy would come under relentless pressure.

The thinking of our founding parents was that we should never again let politicians be the sole and final arbiters of what laws and policies are permissible in our nascent democracy. The constitution is a legally enforceable document that captures the vision of our best future selves, severing ties with a morally odious past in which a racist parliament had unchecked powers to fundamentally shape South African life. 

What was interesting about the post-apartheid arrangement was that parliament and the government would be answerable to the legal demand of a rational exercise of public power. No state official could henceforth get away with arbitrary decision-making.

The very point of the principle of constitutional supremacy was that it embodied our collective agreement that parliament and cabinet are subject to the authority of the constitution. We should therefore all be vested in the protection of our constitution, in the Constitutional Court as the locus of enforcement of the constitution, and be vested more generally in protecting the entire judiciary from unwarranted assault.

Failure to do this would imperil our constitutional democracy because it is necessarily dependent on a judiciary that does its job effectively, and without attempts at political interference. 

These are elementary features of democratic theory. I was thinking of it all in light of the Johannesburg high court order this past week declaring then national commissioner of correctional services Arthur Fraser’s decision — to grant former president Jacob Zuma medical parole — unlawful and that it therefore be set aside.

Zuma now has to return to prison to complete the 15-month sentence imposed on him by the Constitutional Court for contempt of court.

There are some fears that we may see unrest again, as we did in July, as a result of unhappiness on the part of Zuma supporters that his medical parole had been set aside. Fraser himself stated that one of the reasons he had decided to override the medical parole advisory board’s decision not to grant Zuma medical parole was to avoid unrest.

All of this, in turn, raises a critical question about the relationship between law and politics: should judicial officers take cognisance of political realities when they apply the law? And if so, how should such considerations feature in legal adjudication?

Once judges do some people a favour, because of fear about how their judgments might land publicly, they become complicit in undermining the rule of law

Judges cannot be sidetracked by speculation about the political ramifications of their work. The job of a judicial officer is strictly and solely to apply the law to the facts before them. They must do so without fear or favour.

We deliberately pay judges well and give them an incredible level of job security — impeachment is unheard of precisely for that reason — because we want to minimise the chances of nefarious interests capturing the judiciary by bribing judicial officers and influencing them.

The jurisprudential reasoning behind this narrow view of what judges must do is simply that we need our laws to be faithfully complied with by every citizen so that social and political life can be effectively regulated. That is how we create a stable society.

There are norms embedded within the law that help us realise this goal. We are, for example, treated equally before the law because fairness demands that no-one be beyond the regulatory reach of the law. Honest and fearless legal adjudication is important to ensure that we animate this principle of equality before the law.

Once judges do some people a favour, because of fear about how their judgments might land publicly, they become complicit in undermining the rule of law. That is unlawful and unethical. Good judges simply get on with legal adjudication without fear or favour.

Obviously that does not mean that legal adjudication is value-free. Legal interpretation necessarily involves complex hermeneutics and so values and principles may well creep into the language games that judges play.

Constitutional law in particular cannot escape the value-laden nature of constitutional interpretation. But there is a crucial difference between reasoned differences of opinion about legal texts, and undermining your authority as a judge by guessing what the loudest voices in the streets want and then adjudicating a matter to seek the approval of those voices.

The public should never be allowed to influence the judge’s analysis so crudely.

What does this have to do with Zuma?

Well, if unruly elements tried to protest against the decision of the courts, then the state must simply use lawful state powers (as it is mandated to do) to prevent or stop any unlawful protesting.

Courts do not enforce court orders. The entire security cluster must work together to ensure that constitutional supremacy is a living reality. 

A nagging societal problem is that the capture of the state resulted in parts of the security cluster itself being hollowed out. That was why we all waited curiously to see whether, when and how easily police would escort Zuma to prison when he initially failed to voluntarily hand himself over to correctional services.

But judges cannot be burdened with the politics of policing. It would undermine the essence of legal adjudication if a judge was expected to take account of potential lawlessness or ineffective policing when considering a legal matter. 

It would also incentivise constitutional delinquents to continue breaking the law if they could bank on tame judges not having the necessary backbone to do their jobs without fear or favour.

We see this already. Buffoons like Carl Niehaus argue that the court’s decision in the medical parole review “should be rejected” while other nincompoops interviewed by reporters say things like “a protest can be averted if the appeal succeeds”.

A judge who reads such quotes in newspapers or hears them on radio while driving to chambers should ignore these irrational responses to their judgments. Accountability is built into the legal system through the construction and operation of the appeals process.

Furthermore, there are clear rules for how to get rid of an incompetent judge. And, at any rate, justice is dispensed in open court, which means we can hear and read the legal reasons for a judge’s decision and hold them accountable by rationally engaging their publicly stated legal reasons in support of their conclusions and their court orders. 

You never hear the likes of that other weird one, Mzwanele Manyi, explaining what they do not like in the legal analysis given by a judge, and why. This is because they are not interested in rational debate.

They simply want to escape legal accountability entirely and be treated as special citizens who do not have to comply with the laws of the land. When they do not get away with such foolishness, they resort to thuggery. Judges cannot go to work consumed by thoughts of how badly thugs might respond to judgments that do not go their way. 

We, in turn, as civil society, must urgently improve our support for the judiciary. If we fail to grasp the serious democratic stakes of these relentless attacks on our judiciary, we will have major regrets when it all falls apart. The time is now to encourage rational engagement with judgments while rejecting scurrilous attacks on judicial officers from people hellbent on living outside the demands of our constitutional democracy. 

• McKaiser is a contributor and analyst for TimesLIVE. His most recent book is 'Run, Racist, Run: Journeys into the Heart of Racism'.