Birchwood Hotel, Benoni, 16 July 2003
Chairperson, Deputy Chief Justice, Pius Langa,
Chief Justice, Arthur Chaskalson,
Honourable Deputy Minister, Cheryl Gillwald,
Honourable Justices and judicial officers,
Distinguished delegates,
Distinguished guests,
Ladies and gentlemen:
Alexander Hamilton was a combatant in the American War of Independence. He was also a leading figure in the 1787 United States Constitutional Convention and a principal author of the Federalist Papers. In "The Federalist, No 78", dated May 28, 1788, he wrote:
"The judicial magistracy is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince: in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright and impartial administration of the laws.
"Whoever attentively considers the different dpartments of power must perceive, that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights in the constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honours, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciar!y on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will, but merely judgement; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgements.
"Some perplexity respecting the right of the courts to pronounce legislative acts void, because contrary to the constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power.
"It is not.to be supposed that the constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose that the courts were designed to be the intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is in fact, and must be, regarded by the judges as a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought of course to be preferred; or in other words, the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
"Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature declared in its statutes, stands in proportion to that of the people declared in the constitution, the judges ought to be governed by the latter, rather than the former. They ought to regulate their decisions by the fundamental laws, rather than those which are not fundamental.
"(The) independence of the judges is equally requisite to guard the constitution and the rights of individuals from the effects of those ill humours which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information and more deliberate reflection, have a tendency in the mean time to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.
"It is easy to see that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the constitution, where legislative invasions of it had been instigated by the major voice of the community.
"To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; and it will readily be conceived from the variety of controversies which grow out of the folly and wickedness of mankind, that the records of those precedents must unavoidably swell to a very considerable bulk, and must demand long and laborious study, to acquire a competent knowledge of them. Hence it is that there can be but few men in the society, who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge."
In our practice of governance, 215 years after an American revolutionary and constitutional lawyer wrote this text, addressing it "To the People of the State of New York", we continue to bow in deference to its prescriptions.
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.
But to return to Alexander Hamilton, we also proceed from the position that what must also 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 judicial magistracy 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 judicial magistracy 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 judicial magistracy 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 February 21, 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 May 3, 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 recognized 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" must now take charge.
On behalf of all our people, I wish this important symposium success.
Thank you.