Independent judiciary also
an agent of change
The separation of powers is a centrally important part of our system
of government, as is the independence of the judiciary.
I am pleased that we have made progress in repairing the breach that
emerged a few weeks ago, arising out of a constructive interaction between
the judiciary and the legislature.
Like the American revolutionary, Alexander Hamilton,
we proceed from the position that what must guide our judiciary is
our constitutional
order. And Hamilton has told us that this must be so even in the circumstance
that what is unconstitutional "has been instigated by the major
voice of the community".
Or, as Hamilton said, "the constitution ought to be preferred to
the statute, the intention of the people to the intention of their agents",
assuming, as we do, that the constitution represents the will of the
people.
And further, we have taken Alexander Hamilton
at his word with regard to another matter. We have accepted his prescription
that our judiciary
should be made up of men and women "who unite the requisite (moral)
integrity with the requisite knowledge (of the law)". We presume
it to be the case that you are such South African men and women, and
expect you to behave as such South African men and women.
Like Hamilton, we proceed from the position that our Constitution reflects
the genuine will of our people. Accordingly, as it ensures respect for
this vox populi, codified as our fundamental law, we must take it for
granted that our judiciary knows, unequivocally recognises, and unreservedly
accepts the legitimacy and inviolability of the will of the people that
Hamilton said had to take precedence over the desires even of the elected
agents of the people.
As you know, the Preamble to our Constitution says:
"We, the people of South
Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land; Respect
those who have worked to build and develop our country; and Believe
that South Africa belongs to all who live in it, united in our diversity.
We therefore, through our elected representatives, adopt this Constitution
as the supreme law of the Republic so as to - Heal the divisions of
the
past and establish a society based on democratic values, social justice
and fundamental human rights..."
We take it that the fundamental perspective spelt
out in the Preamble of our Constitution constitutes the very essence
of what must inform
the conduct of our judiciary as it fulfils its role as "the faithful
guardians of the constitution", continuously asserting the superiority
of "the intention of the people to the intention of their agents".
As you know, John Marshall was the first Chief Justice of the liberated
United States of America. At the Virginia Convention that ratified the
US Constitution, Alexander Hamilton conducted a seminar on the Constitution
for his fellow revolutionary and fellow delegate, John Marshall, on whose
shoulders fell the responsibility to interpret the new Constitution,
as Chief Justice of the United States of America.
In this instance, the revolutionaries who had liberated the American
colonies from British imperial rule with guns and replaced feudalism
with democracy, took on the responsibility to define and defend the legal
order that would define the new society, including the Constitution they
had drafted and approved.
They were both part of the revolutionary masses that overthrew British
rule, and the new establishment that sat as the legislature, the executive
and the judiciary of the new United States of America.
Accordingly, Alexander Hamilton could confidently entrust the protection
of the people and the Constitution to Americans, such as John Marshall,
a military officer in the American Revolution, elected Member of the
US Congress, and Secretary of State, knowing that they were as much part
of the new society that was being born, as he was.
And thus do revolutions not only succeed, but also manage to defend
themselves, as did the American Revolution.
On 21 February 2001, the US Supreme Court decided
the case "Board
of Trustees of the University of Alabama et al. v. Garrett et al",
which dealt with alleged discrimination against some people on the basis
of their disability.
Without any suggestion of approval or disapproval of the determination
made by the Court, I would like to quote part of the opinion expressed
by Justices Kennedy and O'Connor who concurred with the ruling of the
Court. Here is what they said:
"Prejudice, we are beginning to understand,
rises not from malice or hostile animus alone. It may result as
well from insensitivity caused
by simple want of careful, rational reflection or from some instinctive
mechanism to guard against people who appear to be different in some
respects from ourselves. Quite apart from any historical documentation,
knowledge of our own human instincts teaches that persons who find
it difficult to perform routine functions by reason of some mental
or physical
impairment might at first seem unsettling to us, unless we are guided
by the better angels of our nature. There can be little doubt, then,
that persons with mental or physical impairments are confronted with
prejudice which can stem from indifference or insecurity as well
as from malicious ill will.
"One of the undoubted achievements of statutes
designed to assist those with impairments is that citizens have
an incentive, flowing from
a legal duty, to develop a better understanding, a more decent perspective,
for accepting persons with impairments or disabilities into the larger
society. The law works this way because the law can be a teacher.
So I do not doubt that the Americans with Disabilities Act of 1990
will
be a milestone on the path to a more decent, tolerant, progressive
society."
In another case, Immigration and Naturalisation Service v. Aguirre-Aguirre,
decided on 3 May 1999, relating to the correctness or otherwise, to deport
a citizen of Guatemala from the United States, the US Supreme Court said,
among other things:
"In addition, we have recognised that judicial
deference to the Executive Branch is especially appropriate in
the immigration context
where officials 'exercise especially sensitive political functions
that implicate questions of foreign relations'. INS v. Abudu, 485 U.
S. 94,
110 (1988). A decision by the Attorney General to deem certain violent
offences committed in another country as political in nature, and
to allow the perpetrators to remain in the United States, may affect
our
relations with that country or its neighbours. The judiciary is not
well positioned to shoulder primary responsibility for assessing the
likelihood
and importance of such diplomatic repercussions."
We have cited these two cases to illustrate two
simple and yet profound observations. In the first case, judges of
the US Supreme Court make
the correct point that "the law works this way because the law can
be a teacher" that helps to inform public behaviour.
It must follow from this that the interpretations of the law by our
courts, as visualised by Alexander Hamilton, also serve as teachers that
help to inform public behaviour. Necessarily, therefore, our judicial
magistracy must constantly ask itself the question whether its determinations
constitute the kind of teacher that should inform the views and actions
of our people as they struggle to give birth to a new South Africa.
To answer this question correctly, in a manner consistent with the vision
contained in our Constitution, the members of our judicial magistracy
must necessarily feel as, and be part of the masses through whose sacrifices
we are now able to describe ourselves as a democratic republic, as Alexander
Hamilton was able to describe the United States of America as a democratic
republic, in the aftermath of the armed defeat of British imperialism.
In the second instance, the US Supreme Court
made the plain statement that while it respected the separation of
powers, it also recognised
the fact that these powers, operating as entities that, together, constitute
the United States system of governance, are bound together by common
national interests. Accordingly, it openly conceded the principle and
practice of "judicial deference to the Executive Branch".
I dare say that this is possible because US history placed Alexander
Hamilton and John Marshall in the same trench as US citizens, sharing
a common experience of oppression, of struggle, of cooperation in the
effort to give birth to a nation.
Accordingly, even as they had fought for and worked to defend the principle
and practice of the separation of powers, they were also of one mind
in upholding the conclusion that this vision had to be realised within
the context of uniting the people of the United States and all their
state and other institutions, in a common effort to achieve the grand
vision spelt out in the American Constitution.
Between them they shared and espoused a common American dream. Because
of this, it is possible for today's US Supreme Court to state, without
hesitation, that in some defined circumstances, the judiciary should
defer to the executive.
In "The Federalist, No 51", issued
on February 6, 1788, Hamilton said:
"If men were angels, no government would
be necessary. If angels were to govern men, neither external nor
internal controls on government
would be necessary. In framing a government which is to be administered
by men over men, the great difficulty lies in this: you must first
enable the government to control the governed; and in the next place,
oblige
it to control itself. A dependence on the people is no doubt the
primary control on the government; but experience has taught mankind
the necessity
of auxiliary precautions.
"This policy of supplying by opposite and
rival interests, the defect of better motives, might be traced through
the whole system of
human affairs, private as well as public. We see it particularly displayed
in all the subordinate distributions of power; where the constant aim
is to divide and arrange the several offices in such a manner that
each may be a check on the other; that the private interest of every
individual,
may be the sentinel over the public rights. These inventions of prudence
cannot be less requisite in the distribution of the supreme powers
of the state."
Hamilton says "a dependence on the people is no doubt the primary
control on the government". Whatever the separation of powers, and
whatever the interests of individuals, acting both in the private and
public spheres, we derive our authority from, and are subject to control
by the people.
We are meeting here today to reflect on the critically important matter
of the transformation of the judiciary. I am convinced that to succeed
in our task, first of all, we must define ourselves as being with and
of the people whose struggles brought all of us our liberty.
As part of these masses, we cannot but be agents of change, for the
kind of South Africa visualised in our Constitution, which shall guarantee
for all our people human dignity, democracy, non-racialism, non-sexism,
equality and prosperity. Without this commitment, this symposium will
amount to nothing more than a mere and cruel pretence.
In their book, "Transforming The Organisation",
Francis Gouillart and James Kelly, have written about businesspeople
who face the challenge
of the transformation of their companies. They say:
"Transformation...is the time when corporations
leave the secure walls of the castle and step into unexplored territory.
Though the dynamics
of success may eventually lead to elation, it is not much fun in
the initial stages. There are walls of reluctance and denial to break
through,
old values to discard, and new ones to assimilate. And that is usually
painful, because the ramparts are thick, and they are made of human
emotions and prejudices."
The results of your deliberations
will tell whether you have broken down the
walls of reluctance, discarded old values, assimilated new values, and
established mastery over your human emotions and prejudices, honestly,
and
taken to the road that John Marshall of revolutionary America chose,
more
than two hundred years ago. The "better angels of our nature" of
whom
Justices Kennedy and O'Connor spoke, must now take charge.
Edited version of the speech of President Thabo Mbeki at the Judicial
Symposium, 16 July 2003
|
