2009-04-03 : Judges 'must scrutinise law'

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2009-04-03 : Judges 'must scrutinise law'

Postby GOSA » Wed, 2009-04-15 13:51

http://www.news24.com/News24/South_Afri ... 89,00.html

Judges 'must scrutinise law'
03/04/2009 08:03 - (SA)

Johannesburg - Judges have a role in scrutinising laws in South Africa, not just applying them, said Constitutional Court Judge Kate O'Regan in Johannesburg on Thursday.

"Courts may not turn a blind eye to the impact that a law has on the rights of a citizen. Instead, courts are given the awesome power to declare laws enacted by a democratically mandated legislature to be inconsistent with the Constitution," she told a seminar at the Nelson Mandela Foundation.

"... Laws must be scrutinised for constitutional consistency."

Judges could not blindly follow the politics of the day.

For example, she said: "It may be that one of the reasons that judges implemented apartheid laws was that they thought they need not be concerned with the morality of the law."

"When judges closely associate with a political project it can be very dangerous," said O'Regan.

Yet, O'Regan said, it was the job of politics and not the courts to be the maintainers of democracy.

Good politics = good democracy

"Without good politics any democracy is doomed.

"You can't save a democracy through the courts. Courts are minimalist."

She said the strength of a democracy was based on its legislature and executive.

It was normal in a democracy that courts and politics sometimes became intertwined.

For example, the Constitution defined certain socio-economic rights for all citizens and so it was not possible for government to choose not to provide these.

She said it was "more difficult" when political issues around criminal conduct and prosecution arose.

In these cases it was important for courts to conduct just a "straightforward job;" to read the record and decide the case.

Court, politics intertwined

Yet, she said, since this kind of intersection of politics and the courts was "not unusual...we should not be terribly disconcerted by a lot of noise".

O'Regan said transformation of the judiciary was important so that it created a legal system recognised as legitimate by all.

"A diverse bench enhances the legitimacy of the judiciary in the eyes of the broader community."

The judiciary should not be seen as the preserve of a particular group or elite.

However in using diversity to represent a transformed judiciary, lay the danger of "the siren of identity determinism", said O'Regan.

With this determinism it became seen that "your identity determines your judgments:

"If you are a black male judge you will sympathise with a black male accused/complainant and your judgment will reflect this.

"This notion extends further: if you are a black male judge, you have an obligation to see the world in a particular way; and if you do not, you are to be criticised for that.

"Such reasoning must be rejected vigorously," she said.

Diversity 'necessary'

O' Regan also said selecting judges to represent the country's social demographics was not an attempt to ensure each judge became a representative of the group they came from.

Rather, "requiring diversity on a collegial court enables judges to interrogate their own prejudices of blind spots.

"The more alike judges are, the more likely that they will mistake prejudice for simple truths.

"The more different they are, the more likely that they will interrogate the correctness of their assumptions."

Last month, O'Regan was in the news when she supported Health Minister Barbara Hogan's condemnation of the government's decision to refuse the Dalai Lama entry into the country to attend a 2010 peace conference.

"It is a matter of dismay that human rights does not seem to enter into the picture of some foreign affairs decisions that are made," O'Regan was quoted as saying at the time.

On Thursday, despite an audience member's attempt to get her to comment on the matter again, she said she was keeping mum.

"Quite truthfully I do not want to comment further in the issue related to the Dalai Lama," she said.

Yet, the Dalai Lama issue popped up again in discussion at the seminar.

Eventually NMF chief executive Achmat Dangor said the foundation was actually planning on holding a separate seminar on the issue.

ANC member and businessman Tokyo Sexwale, attending the seminar in his capacity as a trustee of the foundation, then asked if the Dalai Lama would be invited to come and attend the seminar.

Dangor said both the Dalai Lama and Archbishop Desmond Tutu could be present at the seminar to give "god's guidance" on the matter.

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