Quote of the week
Universal adult suffrage on a common voters roll is one of the foundational values of our entire constitutional order. The achievement of the franchise has historically been important both for the acquisition of the rights of full and effective citizenship by all South Africans regardless of race, and for the accomplishment of an all-embracing nationhood. The universality of the franchise is important not only for nationhood and democracy. The vote of each and every citizen is a badge of dignity and of personhood. Quite literally, it says that everybody counts. In a country of great disparities of wealth and power it declares that whoever we are, whether rich or poor, exalted or disgraced, we all belong to the same democratic South African nation; that our destinies are intertwined in a single interactive polity.
August and Another v Electoral Commission and Others (CCT8/99) [1999] ZACC 3
On judicial deference
A reader seems perturbed by a column in last week’s Mail & Guardian commenting on the ANC discussion documents on the transformation of the judiciary. In it, the anonymous columnist focuses on the document’s obsession with the principle of the separation of powers and asks why this is happening.
One answer is to be found in the document’s recommendations: there is a desire to guarantee a judiciary that will be as cooperative with the government as possible, nd that will produce a body of law as deferential as is constitutionally permissible.
The reader suggests this is a disturbing possibility and comments: “The word ‘objective’ would be much more comforting. There is a degree of submission associated with the word ‘deference’.”
This is a fascinating question. In the pre-democratic South African legal discourse, “deference” was used as byword to describe what judges did who uncritically applied the apartheid legislation and generally did not ask any questions.
Some more traditional commentators still use “deference” as the measure to decide how independent and progressive the members of, say, the
Some judges of the
But respect does not mean always agreeing with the legislature or the executive. The
Of course the Mail & Guardian columnist suggests that the ANC wants a Court that always agrees with it and never criticises it. If that is indeed, the impulse behind the document it is troubling. Judges are the guardians of the Constitution and must act as referees to interpret the rules of the game and to ensure that the other players (legislature and executive) stick to the rules as interpreted.
If they merely become a rubber stamp of the President, say, we have come to the end of a true constitutional state. Of course most governments want courts to agree with them and try to influence them in that regard. So far the judges of
In doing so, they have not acted “objectively” because, I believe that is not possible. Every judge brings his or her own view to the table and has to interpret extraordinary broad and vague provisions such as “Everyone has a right to human dignity”, which is impossible to do in an “objective” manner.
