Debate is no attack, and attack is no debate

Over the past week or so we have seen reels of editorials and commentary by mainstream media on statements made by the ANC and the SACP about the judiciary, opening frantic attacks on me and Cde Gwede Mantashe. In essence, we are told that we must shut up, because our statements are interpreted as a threat to democracy or show intolerance towards the judiciary.

However, I was deeply disappointed, if not flabbergasted, by former Justice of the Constitutional Court, Justice Zac Yacoob’s comment to City Press to the effect that nowhere in the Constitution does it say the judiciary must bother about what the Minister of Higher Education says about the courts.

Justice Yacoob accuses government of “complying with the letter of the law, but not quite with the spirit.” He then continues to say that he has “examined the Constitution again” and “found no provision that the minister of higher education has the power to determine when the line has been crossed. The minister must remember that this is a power that belongs to a court and only the court.”

I am disappointed because Constitution clearly states that every person, notwithstanding being a minister or not, has a right to freedom of thought and expression. This must include critical commentary on the judiciary, a right fortunately and correctly re-affirmed by Chief Justice Mogoeng Mogoeng recently.

Is Justice Yacoob trying to stifle debate? Is he saying that nobody but our courts are allowed to comment, discuss or debate the judiciary, judgments of the court or the law in general? Surely I do not need to remind Justice Yacoob that the SACP, or any person or organization for that matter, has a right to comment on any matter it sees fit, including the state of our judiciary. It is important that we remember that South Africa is not a court of law, but a democratic society with a constitutionally enshrined right of striving to freedom of expression for all, on any matter.

Justice Yacoob’s response goes to the heart of the first issue I wish to address. There is growing ideological blackmail, led by the media and the opposition parties, that ANC ministers and/or ANC and Alliance leaders must not express their views, as these are seen as a threat to democracy by virtue of it being said by us.

Even opposition MPs and parties are regarded as having more freedom of expression, judging by the manner in which court judgments against the ANC in Parliament are, as a matter of course, celebrated by the media. For example, if a court rules in favour of EFF hooligans disrupting the President’s answers to Parliament, none in the media or opposition ask the obvious question – namely what about the violation of the rights of those MPs and members of society who want to listen to the President’s answers?

There is a creeping and dangerous discourse that every South African has a right to freedom of expression, except if he/she is the President, minister or leader in the Alliance. The media defends its right to exist and its freedom of expression to the hilt, but they demonize the ANC and government ministers for exercising the very same right.

The above observation underlines the correctness of our identification of an anti-majoritarian liberal offensive against government and the ANC-led Alliance. Part of the many tributaries of this offensive is that of ideological blackmail. We must expose these double standards of freedom of expression and thought for what it is – an attempt to intimidate, blackmail and silence the ANC and majority rule, as part of a broader regime change agenda. This behaviour is not hypocrisy on the part of this agenda, but a deliberate strategy to delegitimize the ANC and majority rule that favours it.

It is for this reason, for instance, that all major decisions and actions of Parliament are taken to court, as part of undermining the ANC government. Our movement and cadres must consistently expose and resist this agenda with the ultimate goal of rolling it back and defeating it.

Back to the judiciary – The SACP believes that our judiciary must be respected. There is no question about that. But part of fostering respect for the judiciary is that it must be transformed so that it has the confidence of the overwhelming majority of our people. Transformation of the judiciary must also include access to justice for workers and the poor, and not only for wealthy and influential people. It essentially means justice for all.

Part of respect for the judiciary, and indeed our whole democratic order, must be that all the three arms of the state – Parliament, the executive and the judiciary – must scrupulously respect the separation of powers.

This debate is also not informed by smear campaigns against the judiciary, a concern rightly and recently expressed by the Chief Justice. We condemn such campaigns, as the SACP strongly believes that smear campaigns achieve nothing. What we need is a healthy and constructive debate.

In the Senator Philip Hart Annual Memorial Lecture given by the Deputy Chief Justice Dikgang Moseneke in the United States in 2012, he discusses, amongst others, the “political questions doctrine” and the separation of powers, and says:

“In the US, the Courts have elected not to exercise jurisdiction over issues that constitute political questions and should be resolved by the political branches. In South Africa the Constitutional Court has not adopted such a doctrine. This is because our Constitution has made a different election”.

This begs the question as to what the legal, political and theoretical underpinnings of this doctrine are. This is something that the SACP finds extremely concerning. The debate over the role of the courts in our system of government inevitably focuses on the counter-majoritarian dilemma inherent in a constitutional democracy. To what degree can an unelected group of judges strike down decisions taken by democratically elected government representatives? What are the limits to judicial review and where does one strike the balance between judicial activism and judicial restraint?

The SACP is concerned that this is becoming a politically partisan process, which, as far as we are concerned, is at odds with the spirit the spirit and the letter of the separation of powers enshrined in our Constitution.

The reference, in Deputy Chief Justice Moseneke’s speech, to the reluctance to delve into the sphere of the executive by the judiciary is ironic, as this reluctance itself derived from the fact that President Roosevelt had objected to US courts interfering with political decisions, of especially that of his Presidency. Roosevelt’s New Deal was met with opposition by the US Supreme Court, with some 11 out of 16 of the New Deal laws found to be unconstitutional. The argument of the Supreme Court was that Roosevelthad tried to impose the power of the federal government on state governments – and this was unconstitutional.

Roosevelt responded by “court packing”, a measure in which he increased the number of judges in an attempt to try and neutralize those judges who were opposed to the New Deal.

And long before Roosevelt, in 1803, in the landmark case of Marbury v Madison, the US Supreme Court for the first time used judicial review to strike down a law as unconstitutional.

Ever since then the issue of judicial review and the separation of powers, especially the relationship and distinct responsibilities between the executive and judicial arms of the state, has been a much debated one in the US. This is a debate that we must have in South Africa too.

The SACP is formally calling for an open debate and reflection on the matter of judicial review in relation to the separation of powers in our country. We need to focus the debate on the role of the judiciary in our constitutional democracy at this point in time. Perhaps 21 years into our democracy this reflection is necessary, and the SACP intends, in the coming months, convening such a forum to debate these and other related matters.

We must not allow such a debate to be frustrated by anti-majoritarian political considerations in the media and the opposition parties.

Freedom of expression entails and must include a broader societal debate, devoid of ideological blackmail or judicial injunctions. Democratic debate is not sub-judice. It cannot be that the debate is only be the preserve of liberals and its media and party political organs. The left and other progressive forces have a duty to create its own platforms and not let our debates be dominated by what author Eddy Maloka appropriately calls the Friends of the Natives in the media and the opposition.

Cde Blade Nzimande is the General Secretary of the South African Communist Party