In the ensuing debate on judicial overreach and its harm or not to our democracy, I thought Steven Friedman’s article published in Business Live was enlightening.
If you want to place the courts in great danger, ask them to fight your political battles by taking over the job of democratic politics.
One of the more remarkable political stories here is the way courts have become key players. They have forced the president to account for Nkandla, rescued social grant beneficiaries from public and private power and protected the people from being policed by a senior officer who was labelled dishonest by a court.
Their judgments have been accepted by the government, making this country one of the world’s strongest constitutional democracies.
All this is now under threat — “judicial overreach” has become a buzz phrase as voices warn the courts are being asked to take the place of democratic politics. Since many of these belong to the president’s supporters, this could be mistaken for a sign the courts are doing their job so well the government is running out of patience with them. But the problem lies with parties and NGOs that have become so excited by the courts’ power, they want judges not to strengthen democratic politics but to take it over.
This may have started when the courts were asked to tell Parliament it must allow members to vote in secret. The red line was crossed when they were requested to declare the recent cabinet reshuffle irrational — and breached again when they were asked to reverse the sacking of Pravin Gordhan and Mcebisi Jonas and to tell Parliament to begin to impeach the president. These actions are as much a threat to constitutional democracy as the political behaviour they seek to counter.
To see why this is so, a reminder is needed why a democracy governed by a constitution is required. The core democratic idea is that everyone has the right to an equal say in the decisions that affect them: what is good for society is a matter of opinion, and an illiterate person’s opinion is equal to that of a rocket scientist. So, a government chosen by the people that does what the majority want is a core democratic idea. This is particularly valued in a country in which a minority once ruled the majority.
But if democracy was majority rule only, it would not last long because the majority would use its power to deny rights to everyone else. Majority governments cannot be relied on to respect the rights of their own supporters, let alone their opponents, so rules are needed to ensure that everyone’s rights are respected. This obviously limits what governments can do. But because judges have no more right to decide what is good for society than the people who clean their homes, their role is to support democratic politics in which all participate and the majority decides, not to take its place.
They do not say who governs or what they should decide as long as governments do not break the rules or deny people rights.
Given this country’s history, allowing courts to tell a government elected by the majority what to do seems sure to be quickly rejected as a new form of minority rule. That this has not happened has to do at least partly with the fact that recent court judgments have maintained the balance between respecting democratic politics and protecting the rules. They have not said who should be president or minister of social development or head of the Hawks. They have not told office holders what they should decide. Instead, they have forced them to stick to the rules.
This balance is now threatened. To ask a court to declare a cabinet reshuffle irrational does not enable democratic politics — it rejects it. Whether a person should be president or a minister is a matter of opinion — one person’s superstar is another’s buffoon. Judges’ opinions on the choice are no more valuable than anyone else’s and so the decision is taken
by voters and those they elect to take it.
If citizens do not like who is chosen, they can campaign — and vote — against the government. The courts have no business interfering unless the battle infringes rights. To hand this role to the courts is to deny citizens their right to decide who governs and how they do it.
If courts seek to replace democratic politics, they will be seen not as a safeguard for everyone’s rights, but as a means of imposing the will of the few on everyone. The Constitution will be seen not as a shield for citizens, but a club in the hands of those who can afford to go to court and who expect judges who share their prejudices to impose their will on the country.
If the country wants a working democracy, the balance must be retained. Courts must zealously protect the rules and people’s rights. But they cannot allow themselves to become instruments of minority rule.
• Friedman is research professor with the humanities faculty of the University of Johannesburg.