Judging the judiciary: Jeremy Cronin

2012-02-18 08:50

Over the past several months, clumsy statements by individual comrades in our movement – advancing strictly personal opinions, which may or may not have been misrepresented – opened the way for an unhelpful and wrongly framed debate.

Sections of the media and opposition parties have grasped at these statements with delight.The ANC-led movement is said to be against our current Constitution and hellbent on ­undermining the independence of the ­judiciary. The usual, anti-majoritarian conservatives have jumped on to the bandwagon, parading our hard-won Constitution as if it were a narrow 19th-century liberal document designed simply to limit the state and protect their private property.

Former Chief Justice Arthur Chaskalson ­recently made an important intervention into this general debate. Chaskalson was speaking at a UCT law workshop in late January. Quoting extensively from the preamble to the ­Constitution and from landmark Constitutional Court judgments, Chaskalson lucidly debunks the notion that the Constitution is somehow an impediment to radical transformation.

He correctly traces its origins to the traditions of the liberation struggle itself.Chaskalson goes on to argue that the ­Constitution, far from simply limiting the state, places an obligation on the executive to actively transform our society.  The Constitution, he says, “calls for positive action to confront the apartheid legacy of ­poverty and disempowerment, and for ­building a truly non-racial society committed to social justice. Transformation contemplates an improvement in the lives of people, households and communities, achieved over time by institutionalising policies, programmes and projects to that end.”So far, so good. In fact, so far, excellent.

Chaskalson goes on to concede that: “There may be particular cases where judges have done or refrained from doing something that legitimately attracts the displeasure of the ­executive. Usually such matters can be ­corrected, but even if that is not possible, this does not warrant an attack on the judiciary as an institution.”

Again, he is surely correct. But this last ­sentence begins to beg an obvious question. What happens if, let us say, the Constitutional Court rules in favour of the conservative white agricultural unions currently challenging the constitutionality of the Mineral and ­Petroleum Resources Development Act?This act made the mineral resources in the ground the property of all South Africans, with the state acting as custodian.

The farmers, some of whom may own land on top of minerals, want to claim that these minerals are their personal property – as previously recognised in our archaic colonial laws.It is unthinkable that the Constitutional Court could find in favour of white farming ­interests in this case. Such a decision would fly in the face of the spirit and letter of the Bill of Rights, including the property clause itself. But judges are human, and some in the ­Constitutional Court have been expressing privately, decidedly anti-ANC and ­anti-executive ­sentiments.

I raise these points not to attack the ­judiciary, or to query its necessary independence, but to remind ourselves that the judiciary – like the executive – is peopled by potentially fallible human beings, not demigods.How do we ensure, as much as possible, that we put in place institutions and systems that promote conduct by judges that is transparent and above reproach?

What happens if a Constitutional Court judge is in a consortium with commercial farmers sitting on mineral deposits? I have no reason to believe that this is the case, but the current reported reluctance of the judiciary to make declarations of their business interests on the spurious grounds that it will undermine the independence of the ­institution doesn’t inspire confidence. The executive, in its actions, is answerable to the Constitution. Parliament’s laws are ­subject to judicial review. But the judiciary is also obliged to remain true to the letter and spirit of the Constitution.

How do we ensure that the institution of the judiciary is peopled by individuals who continue to foster the transformational vision so well articulated by former chief justices such as ­Ismail Mahomed and Arthur Chaskalson?And this is where there seems to me to be a slippage in Chaskalson’s otherwise inspiring lecture. When referring to the spirit of the ­Constitution, Chaskalson uses the concept of “transformation” in its radical sense of a ­comprehensive and systemic political, social and economic change. But when he comes to countering the allegation that the judiciary is “untransformed”, he slips into that narrowest of meanings.

He does a racial and gender quota head count. So long as these debates are framed in “us” and “them” terms, as the ANC versus the ­Constitution, or the executive versus the ­judiciary, we will not make much progress.

In fact, we will simply play into the hands of all those reactionaries who seek to dumb down the Constitution and perpetuate a still largely untransformed South Africa.

» Cronin is deputy transport minister and SACP deputy general secretary

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