By Nomfundo Manyathi-Jele

The second congress of the Association of Asian Constitutional Courts and Equivalent Institutions took place in Istanbul, Turkey on 29 April.

Chief Justice Mogoeng Mogoeng, speaking in his capacity as the vice president of the Conference of Constitutional Jurisdictions of Africa (CCJA) and as Head of the Constitutional Court of South Africa, spoke on ‘The Role of Constitutional and Supreme Courts in the Protection of Constitutional Order’.

The three-day congress was organised to mark the 52nd anniversary of Turkey’s Constitutional Court.

Prerequisites for the capacity to protect the constitutional order

In his speech, Chief Justice Mogoeng said that the ability of Constitutional and Supreme Courts to protect the constitutional order depends on the selection of the judges appointed to the courts. He added that if the judges appointed are beholden to any political outfit, or big business or some or other pressure or lobby group or secret organisation or even world superpower with vested economic interests, then justice will be adulterated because the justice-dispensing institutions would be ‘toys remote-controlled by the kingmakers or puppet-masters’.

Chief Justice Mogoeng said judges need to identify and propose the essential ingredients of a selection and appointment process that is objectively credible and sufficiently transparent to protect the courts from otherwise legitimate and justifiable criticism.

According to Chief Justice Mogoeng, the competence of judicial officers is not negotiable. ‘A demonstrable track-record of fair-mindedness, commitment to human rights and the rule of law, decisiveness, humility and personal independence are some of the key traits of a personality fit to serve in the highest court in the land,’ he said.

Chief Justice Mogoeng said that the institutional arrangements must facilitate the independence of an individual judge to decide any case without being unduly influenced by another judge, a politician, big business or lobby groups. Security of tenure, continuous judicial education, tools of trade and support systems were important and necessary for judges to take their own decisions without fear, favour or prejudice.

He added that it was necessary for judges to keep a critical distance from anything or anybody that may compromise their integrity, impartiality and independent decision-making. ‘A judge should always be mindful, without being unduly suspicious, of the existence of forces out there vying for the control of the institution in which he or she serves. These are forces that want to secure your vote or support whenever matters affecting them are before your court,’ he said.

According to Chief Justice Mogoeng, one of the worst betrayals of any nation is by a judge who makes decisions, not because he believes they are correct, but in order to please a friend, constituency or a lobby or pressure group. ‘That is corruption of the worst kind … . We must establish some informal or formal and yet courteous and effective peer-review mechanism that would allow us to raise concerns with colleagues who appear to be doing a disservice to these courts that are central to the protection and promotion of our constitutional democracies’, he said.

Chief Justice Mogoeng said that judges are the best protectors and best guardians of the institutions in which they serve. He reminded the audience that power corrupts, and absolute power corrupts absolutely. ‘Judges are human and they individually and collectively wield enormous power. The potential to be corrupted by this power and by those seeking to corrupt the system always looms large,’ he added.

Giving some context to the magnitude of the danger based on the powers vested in the South African Constitutional Court, Chief Justice Mogoeng said that South Africa’s Constitution is the supreme law of the Republic. ‘Any law or conduct inconsistent with it is invalid to the extent of the inconsistency and falls to be set aside by the Constitutional Court. The Constitutional Court is the apex court in all matters … . In sum, the Constitutional Court has a say in virtually all matters because it has a bearing on almost everything of some importance in our country. The Constitutional Court is the guarantor of our constitutional order… the power of our Constitutional Court is arguably immeasurable. And this could be very dangerous if not handled with humility, due sensitivity and care,’ he said.

Chief Justice Mogoeng said that when the highest court in the land gives a few people a legitimate reason to believe that it is not true to its constitutional mandate, but is in the pocket of some powerful or influential personalities or institutions, then public confidence in them, respect for them and their moral high ground would be undermined. ‘When it ceases to be or begins to look like it is not the genuine conscience of the nation, but a tool, at the disposal of some, then it becomes easy to disregard its orders and to openly renounce it on solid grounds and persuasively,’ he said.

The Chief Justice went on to add that courts that have given stakeholders reason to believe that they are favourably disposed to some illegitimate interests, because they fear the ‘venomous bite’ of the power wielded by those they favour, are in no position to protect any constitutional order.

The Constitutional Court and the protection of constitutional order

Speaking on the Constitutional Court and the protection of constitutional order, Chief Justice Mogoeng said that the Constitutional Court had done much to protect and promote South Africa’s constitutional order. ‘Laws that were passed without affording the affected public the opportunity to participate meaningfully in the law-making process, were set aside. Many Acts of Parliament were declared constitutionally invalid by reason of their inconsistency with the Constitution. Several decisions of the President and Members of Cabinet suffered the same fate owing to their constitutional invalidity,’ he said.

Conclusion

In conclusion, Chief Justice Mogoeng said that there simply can be no state or government without an independent judiciary in a genuine constitutional democracy.

He noted that the appointment to the apex court of any constitutional democracy was a special honour and rare privilege. ‘It must be treasured and allowed to infuse in us an ever-abiding consciousness of the awesome responsibilities that rest on our shoulders for the benefit of our nations, the vulnerable, the voiceless and the forgotten poor. We are the bearers of the legitimate hopes and aspirations of the millions that approach our courts daily, trusting that as final arbiters of what is right or wrong, what is constitutionally valid or invalid, we will refuse to be moved by the power, influence, fame and wealth commanded by any of the parties or sympathetic lobby or pressure groups in matters before us. We will administer justice to all persons alike without fear, favour or prejudice, in accordance with the Constitution and the law,’ he said.

Chief Justice Mogoeng said that the judiciary owes its honour, credibility, moral high ground and status as guarantors of any constitutional order and as the conscience of its respective nations, to always frowning at all illicit attempts to corrupt its jurisprudential and philosophical outlook.

Nomfundo Manyathi-Jele, nomfundo@derebus.org.za

This article was first published in De Rebus in 2014 (June) DR 9.