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The basic principles that underlie our constitutional order include constitutionalism, the separation of powers with checks and balances and the rule of law and accountability.
Some of these principles and values are expressly provided for in the Constitution while others are implicit. However, whether explicit or implicit, they are all justiciable in that any law or conduct inconsistent with them may be declared unconstitutional and invalid. More particularly, they shape the basic framework that defines our constitutional order and informs the interpretation of the Constitution and the law.
Whereas in any democracy the political party elected by the majority enjoys the right and authority to constitute the government of the day, when that democracy is a constitutional one like that defined by our written Constitution, it creates, among other things, the rules for government and sets procedural and substantive limitations on the exercise of governmental power.
Our Constitution is the supreme law of the land and binding on all three arms of the state.
Needless to say, all law and conduct of any of the three arms of state that are inconsistent with the Constitution are invalid.
Further, any obligation imposed by the Constitution on any arm of the state is peremptory and takes precedence over other internal rules of the legislature, the executive and the judiciary. That obligation must therefore be fulfilled.
But what does constitutional supremacy mean if the Constitution cannot be enforced?
Therefore, the power to enforce the Constitution is vested in the courts, which are independent and subject only to the law and the Constitution.
When the courts exercise this judicial power, they must do so impartially without fear, favour or prejudice.
Again, there is the tricky aspect of the counter-majoritarian idea (not counter-revolutionary) where the recurring question is why unelected judges should have the power to strike down laws and the conduct of a majority-elected legislature and a representative executive by declaring them invalid.
The answer lies in the nature of a constitutional democracy.
The Constitution is sovereign
While democracy in its most literal sense might be understood as a “rule by the majority”, in a constitutional democracy the “rule by majority” must be exercised subject to predetermined constitutional rules and procedures.
An important provision in our Constitution is the constitutional rule that orders of court are binding on all people and organs of state, including the legislature and the executive.
Whereas before the adoption of our interim constitution in 1994, Parliament was sovereign and exercised legislative supremacy, the irreversible truth today is that, integral to our constitutional democracy, our legislature is no longer sovereign – the Constitution is.
But let’s not labour the point, because although the separation of powers with checks and balances is also fundamental in our Constitution, what is also important is that the three arms of the state must not pull in opposite directions. Their roles are complementary rather than competitive. Together they have an obligation to protect the supremacy of the Constitution. It is for this reason that all organs of state must help and protect the courts and judiciary to ensure their effectiveness, dignity, independence, impartiality and accessibility.
Any law or conduct that interferes with the functioning of the courts by any person or organ of state is a violation of the Constitution and may be declared invalid and set aside, and the court must say so.
Alternatively, the court may suspend the invalidity for a limited period while the legislature is given the opportunity to correct the invalidity. An order of court that is just and equitable may ensue. That is the power of judicial review assigned to all higher courts in our Constitution, and the courts must exercise that power.
Rule of law and judicial authority
There is no question that the exercise of the power of judicial review – where the laws of Parliament or conduct of the executive are set aside – is potentially imposing and may even overwhelm.
In crucial times, it can determine the destiny of a nation. Indeed, this power of the courts will add up to nothing and be impotent if organs of state in particular have the choice to disregard court orders.
The potential for this notion is not far-fetched considering the recent events in the matter of the Southern Africa Litigation Centre v Minister of Justice and Constitutional Development and Others (popularly known as the al-Bashir matter).
I must admit I am still reeling in shock at what appeared to have happened – a blatant disregard for the order of court in the al-Bashir matter, including the subsequent responses of leading public figures.
I was reminded of the insight of the late Chief Justice Ismail Mahomed when he stated in an address he gave to the International Commission of Jurists in Cape Town on July 21 1998, that the judiciary does not have massive physical resources to execute its orders and can rely only on the executive to do so.
Thus, he said, if court orders were disregarded, “the courts could easily be reduced to paper tigers with a ferocious capacity to snarl and roar, but no teeth with which to bite and no sinews to execute their judgments, which may then be mockingly reduced to pieces of sterile scholarship, toothless wisdom and pious poetry ... the potentially awesome theoretical power of the judiciary in the Constitution could in those circumstances implode into nothingness.
“Judges, in such circumstances, would visibly be demeaned. But much, much worse: human rights could irrevocably be impaired and civilisation itself dangerously imperilled.”
In no circumstances have I ever found these often-quoted, powerful words of Mahomed more compelling. For me, that is exactly the cause for concern.
Besides, I too believe that the fact the judges are not elected must be seen as an important strength of our judicial system rather than its weakness. For me, it reinforces the impartially interventionist and protective role of the courts. Here there is no room for populism. Personal views and positions are irrelevant. That is the role mandated to the judiciary by the Constitution.
In many respects, that role is assigned to the judiciary by the legislature, the authority elected by the people. And, as our Constitution has it, the legislature and executive must protect this role and assist the courts to remain independent, impartial, accessible, effective and perform their role and function with the utmost dignity. The obligation to protect the courts is assigned to them in the Constitution by the people they represent.
To manage the irony of the lack of physical resources for the effective execution of its orders, the judiciary can only continue to cultivate its self-respect and legitimacy in the minds of the society it serves and of the litigants who appear before it.
This must be based on the judiciary’s fierce independence and awe-inspiring integrity at individual and institutional level. It is on this independence and integrity that the legitimacy and esteem of the courts will thrive, as long as judicial officers continue to ensure that the power they exercise is matched by the depth of responsibility they have to fulfil their constitutional mandate, and to do so honourably, without fear, favour or prejudice. That, too, is a responsibility mandated by the Constitution.
A culture of disrespect
It is important, however, for judges to be cognisant of the notion that when litigants appear before the courts, they are entitled and will expect an outcome of a case in their favour. If the decision goes the other way, there will certainly be disappointments. Where the outcome is about striking down and invalidating laws or the conduct of the executive, controversy and/or vigorous debate may ensue from time to time.
Besides, robust and constructive debate and free expression of views or opinion are integral to a vibrant democracy and must be welcomed.
However, what places the legitimacy and integrity of the courts at risk are the reckless responses of litigants amounting to unsubstantial attacks on decisions of the courts whenever they are dissatisfied with the outcome of their cases. And it makes it more dangerous when the litigants are influential public officials.
In that case, it easily sends the wrong message to an already restless public that if the outcome of a court case is not favourable, a litigant is entitled to publicly “attack” the judicial officer and may even disregard court orders. This is a culture of disrespect for courts and the judiciary that we can least afford.
However, judges can take solace in the fact that their decisions are the outcome of a fair adjudication process where relevant issues are raised and submissions made in an open court, and each party has a fair opportunity to make compelling arguments to support its contentions.
It is then the responsibility of the judicial officer to ensure that the orders are just and equitable. This must take into account the facts of the case in the context of surrounding circumstances, the issues raised in argument, the contentions submitted, the research analysis and the interpretation of the applicable law and the Constitution, using classical judicial approaches and rational objective standards of assessing available evidence.
It is important for judges to recognise and identify the limits of their judicial powers in the decisions they arrive at and the orders they make.
Judges are human and not infallible. However, errors in law and fact can be appealed to the highest court through the hierarchy of the courts. This is also the case when judges have overreached themselves. That is the discipline the rule of law requires of each litigant who comes before the courts who is aggrieved by court decisions.
Further, judgments are handed down in open court in the presence of litigants and/or their representatives. They are presented with a copy of the judgment to study and determine whether to lodge an appeal in a stipulated time. A litigant will know if even an iota of irrelevant, extraneous, undue and unbecoming influence has affected the decision of the court and/or the logic of the court’s reasoning does not add up.
Any unbecoming conduct identified and affecting the integrity of the judge and amounting to misconduct in terms of the judicial oath of office and/or under the judges’ code of conduct may be a basis for lodging a complaint against the judge with the Judicial Service Commission (JSC). The process before the JSC may result in the impeachment of that judicial officer. This disciplined route is equally available to all litigants, including organs of state and public officials.
The JSC constitutes a cross section of representatives, including members of the executive and the legislature. Again, the availability of these processes leaves no room for any form of public attack on a judicial officer and/or the judiciary.
We are in this together
The judiciary has the first responsibility to cultivate public respect, trust, integrity and legitimacy based on the way it performs its constitutional mandate.
But I have no doubt that organs of state and public institutions, or bodies who have an interest if the independence, integrity and legitimacy of the judiciary are placed at risk – to various degrees and in various ways – also have a responsibility to protect the courts. They have an obligation to speak up in defence of the judiciary, the bulwark of our constitutional democracy.
Although the show of leadership demonstrated by the heads of the courts led by Chief Justice Mogoeng Mogoeng after the recent spate of attacks on the judiciary is commendable and was appropriate in the circumstances, judges do not have to go that far to defend the judiciary if others with a constitutional responsibility step up in defence of the judiciary.
Notable, however, are the efforts of the Public Protector, the media and others in that regard.
More specifically, the chapter 9 institutions, which are independent and, like the courts, are subject only to the Constitution and the law, have the primary role of supporting constitutional democracy. They have an important interest in the protection of the courts. Surely, other public institutions and bodies who have a stake in the strength of our courts to perform effectively also have an important role.
The organised legal profession is integral to the system of the administration of justice. In view of its close association with the courts and the direct reliance it places in its work on the independence and integrity of judges, it should be the first line of defence of the courts when their integrity is in jeopardy.
Similarly academia, in particular legal academia, is an important role player. Only last week, the Society of Law Teachers had its general meeting and it would be interesting to learn of its response to these recent developments.
The role of a vibrant independent media in identifying and investigating the most pertinent issues for public attention and debate and promoting public dialogue cannot be exaggerated and should not lose its lustre.
My generation can remember the game-changing role that human rights and civil society organisations played in the dark days of apartheid.
And we know only too well how the need for transformation in government, and the public service in particular, almost depleted the resourcefulness of civil society.
Although most of these nongovernmental bodies are limited in membership and restricted in their funding, which affects their impact, the role they still play – although this has slightly shifted – is as critical today as it was in the past. I believe they have a serious interest if the independence of the courts is not protected.
The long and short of it is – whether it’s the state or the public – we all have an interest in the independence, integrity and legitimacy of our courts and must protect them and desist from creating circumstances that weaken them and place their authority in jeopardy.
If there is a point of social cohesion that has the greatest potential for institution-building with a view to nation-building, it is the respect we must show for our Constitution as the foundation of our constitutional democracy, in which the role of our courts is central.
This is an edited extract of a speech delivered by Mokgoro at the third annual Kader Asmal Human Rights Lecture held at Wits University on Tuesday
