I have, at times, been rather scathing of some judges on our High Courts — including Judge President John Hlophe and Judge Motata of the Transvaal Provincial Disvision of the High Court. Yet I have criticised Helen Zille for saying that Judge Nathan Erasmus is allowing himself to be used by the ANC to smear the DA.
Thoughtful readers of this blog have suggested that I might have been wrong about my criticism of Zille or — worse — that I might be guilty of hypocrisy myself for having one standard for myself another for her. This is an interesting and important issue and worth thinking about in a spirit of critical self–reflection and open engagement.
I could, of course, argue that there is a difference between myself — a lowly law professor — and Helen Zille, the Leader of the Official Opposition, and that she should be more circumspect than I need to be when criticising judges — but that would be a cop-out. It’s better to think through the principles that should govern critique of judges and take it from there.
In my opinion the first principle is that judges are not above criticism, and that it is the right of every citizen (and sometimes the duty of citizens) to criticize members of the Bench. In the past, judges had a far too easy time of it because they could hide behind the notion of contempt of court to silence critics and escape ridicule. Now we understand that judges — unelected as they are — must to some extent be held accountable by the public and by academics, and that vigorous and robust criticism of the decisions handed down by judges strengthen rather than undermine respect for the judiciary.
Through contest and debate about the content of individual legal decisions we will enhance the legitimacy of the judiciary because we will keep judges on their toes, and make them aware of the views of the electorate, which they should not slavishly follow but of which they must at least be aware.
The second principle is that it is imperative to focus one’s criticism on what a judge has said or done, rather than on who the judge is and where they come from. When one thinks a judge has made a mistake, one should provide arguments for why he or she has made this mistake, rather than merely stating that the judge is a bad or biased person because of his or her history or race.
This means that personal attacks on judges by, for example, impugning their integrity or suggesting that they are incapable of acting in a fair and impartial manner because of who they are (whether they are black or white, say) or because of their personal history, should almost always be avoided because this may well undermine respect for the judiciary and affect its independence.
Criticising the decision of Judge Hillary Squires in the Schabir Shaik case because he happened to have been in a white judge in Zimbabwe was therefore untenable. The same holds for suggesting that the judge in the Wouter Basson case only acquitted Basson because the judge happened to be the brother of a previous leader of the far right Conservative Party.
The third principle is that where one suspects that a judge is biased or lacks impartiality, or that his or her credibility is potentially fatally compromised because of what a judge has said or done, one should as a general rule try and address such concerns via the credible avenues available and should not resort to ad hominem attacks. This means one should choose to challenge the impartiality of a judge in Court, or that the complaint should be taken e to the Judicial Services Commission (JSC) before impugning the integrity of a judge in the media (or on this blog, for that matter).
In extreme cases, where a judge has done or said something that one finds utterly repugnant and in conflict with the values of our constitutional system, and where the official channels have not yielded any results, it may be one’s right and duty to speak up and to criticise the judge as well as the institutions who one thinks might have failed to credibly address the repugnant behaviour of the judge.
This is what retired Constitutional Court Justice Johan Kriegler did when he wrote a scathing article in the Sunday Times after the JSC had decided not to proceed with impeachment proceedings against Judge President John Hlophe. Kriegler could point to undisputed facts (a substantial amount of money was paid to Hlophe by Oasis and Hlophe then did a favour for the company), and could question the wisdom of Judge Hlophe’s continued membership of the judiciary.
Looking at these principles I have to confess that I have, at times, sailed rather close to the wind and might once or twice have gone too far. There is a fine line between robust and vigorous criticism, and undermining respect for the integrity of the Bench. For example, I was rather scathing of Judge President Hlophe even before the JSC had decided not to begin impeachment proceedings against him. That might have been wrong.
This is not to say that one should treat judges as gods and that one should not be allowed to make fun of judges and their decisions, and even ridicule them for what they have done or said. However, it does mean one should be extremely careful to suggest that a judge cannot be trusted because of who he or she is or where he or she comes from.
On reflection this is also why I have been rather critical of Helen Zille for saying that Judge Nathan Erasmus is allowing himself to be used by the ANC for accepting to chair a Commission of Enquiry set up by Premier Ebrahim Rasool in terms of the Western Cape Provincial Commissions Act 10 of 1998.
If Mrs Zille thinks that the judge had made a mistake by accepting this appointment, she should challenge the appointment in Court. She should also be free in the meantime to say why judge Erasmus — in her opinion — should not have accepted this position and to argue (even robustly) that his decision was not in line with the principles set out by the Constitutional Court.
But she went further. In an attempt to undermine the credibility of the Commission and to score a short term political advantage for herself and her party, she suggested that Judge Erasmus was a political lackey of the ANC. She thus attacked him personally and impugned his integrity without following the legal route first, and she did this for short term political gain.
Such attacks are very problematic because they have a tendency to be remembered. The next time Judge Erasmus is called upon to consider a controversial case as a High Court judge, people will remember this attack, and those who oppose his decision will then be able to point to the comments made by Zille to delegitimise the decision — no matter how sound that decision might be in law.
The courts only work because they have a certain amount of legitimacy. We obey and respect the decision of judges in part because we think that those judges have a certain amount of credibility. When politicians undermine the credibility of judges for short term political gain, they undermine the legitimacy of our judiciary. And without a legitimate judiciary the Constitution will become no more than a paper document.