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Protestors have no place near courts

01 June 2013, 08:36

In this country, and even in the United States, the sight of chanting protesters standing outside Courts of law brandishing banners is an all too common sight. Many will recall the Michael Jackson trial where one group called for the star’s conviction on charges of child molestation whilst another group consisting mainly of his fans, declared him to be innocent.

Armed with a curious assortment of prejudices or misguided loyalties, not to mention a generous helping of propaganda and media driven sensation, most such protestors then proceed to vent as loudly as possible in the hope that the Judge will be so impressed by their commotion and by the sheer numbers involved he might be persuaded to rule in their favour irrespective of what is said in Court by the litigants and their qualified legal representatives.

In a democratic society, the public are of course entitled to air their views. They are also entitled to organise and to vote in order to give effect to their convictions.  However, the right to protest has no place in a legal system.

At the heart of any democracy lies the concept of the division of the legislative, the executive and the judicial powers.  It is generally accepted that the judiciary should be completely independent. The people have the power to select the lawmakers and to select those who enforce the law. But once the law is to be judged, the people and the other arms of government must give way to the independence of the judiciary and to the rule of law.

The idea that judges have to listen to the loud, and often ignorant voices of a mob gathered outside the court is an anathema to any system of justice.  One can have mob rule or one can have courts of law based upon the rule of law. It is not possible to have both. God forbid that the innocence or guilt of a person should ever be determined by a chanting mob rather than by the methodical, reasoned consideration of evidence and of legal argument. It is only through the latter process that the certainty and consistency and ultimately the justice to which legal systems aspire can be achieved.

Of course, in some cultures, the views of some or all of the adults in the community played a central role in what one might refer to as a community based system of justice. Usually the adults, or only male adults in some cases, are all entitled to have their say in the case, and the elders or the chief then proceeds to make a decision.  In adopting our constitution, we moved away from such a system of justice to one based on the rule of law.

I would imagine, however, that even in community courts, the hearings were surely also conducted in a quiet, respectful and dignified manner, and probably not in front of chanting mobs.

The Anglo American system of community involvement in the form of juries who preside in some criminal cases is another form of limited community involvement in the justice system. Once again, however, jury trials follow strict procedures and loud mobs do not play any role at all.

I have watched as DA and ANC supporters have been bussed in to participate in loud protests in front of the High Court.  In some cases, I have had reason to suspect that many of these protestors have been lured by promises of food rather by any deeply held conviction about the issue of the day.

It is essential not only that Courts of law must in fact function independently as they are duty bound to do, but also that they are also seen to be independent.  For this reason there cannot be any place for chanting protestors and their banners anywhere near a court of law. A protestor free exclusion zone, of around one kilometre (or so) in all directions around every Court should be declared. No-one should be permitted to protest or to display banners within such zone. This would not only serve as a mark of respect for the independence of the Judges in our Courts of law, but it also serves to overtly affirm that Courts are places of reason, argument, evidence, contemplation and of law and justice, and that there is no place for mob rule in such system.

I recall that such an exclusion zone was declared around the Court in the OJ Simpson trial in California. No-one was permitted to protest or to display banners or posters within that zone.

An OJ fan attempted to get around this by opening a stand within the zone in which she dispensed free orange juice to onlookers. The stand bore a sign which read:

            “FREE  OJ!”

Despite the ingenuity, for which the lady deserves full credit, the police quite correctly shut her stand down.

 Justice cannot be determined by having regard to the force of numbers or by having regard to who shouts the loudest. The rule of law must prevail and our courts ought accordingly to operate at a suitable distance from those who seek to influence or to intimidate our judges as they carry out their duties.

Nothing will be lost by not having the supporters of corrupt politicians all reciting recently acquired refrains to the effect that their leaders are innocent and that the fraud charges against them are simply a conspiracy. These protests are even more annoying when one considers that many of those expressing such forceful views have not considered it necessary to first conduct any investigations of their own prior to arriving at their conclusions.

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