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 Constitutional Court really are and often argue that they are too deferential and to eager to agree with the ANC government.

Some judges of the Constitutional Court – most notably now retired Richard Goldstone – told me that the new Constitutional Court judges were acutely aware that unlike the new Parliament, it had not been democratically elected. The judges therefore had a duty not to act as a force unto itself, but had to show respect for the other branches of government.

But respect does not mean always agreeing with the legislature or the executive. The Constitutional Court has declared invalid numerous legal provisions and numerous decisions taken by Ministers and the President. They are deferent in style, but not deferent in the orders they make.

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 South Africa’s Constitutional Court has shown a remarkable independence and although we criticise some of their judgments as reactionary or unimaginative that they been, on balance, quite wise in striking the balance between judicial activism and showing the appropriate deference.

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.

What is required is to act in a more or less principled manner and not on a whim because it is thus that the Court earns respect and enhances its legitimacy, which after all, is all the Court has to defend itself against the might of the other two branches of government.