"Independent judiciary also an agent of change"

The separation of powers is a centrally important part of our system of government, as is the independence of the judiciary.

I am pleased that we have made progress in repairing the breach that emerged a few weeks ago, arising out of a constructive interaction between the judiciary and the legislature.

Like the American revolutionary, Alexander Hamilton, we proceed from the position that what must guide our judiciary is our constitutional order. And Hamilton has told us that this must be so even in the circumstance that what is unconstitutional "has been instigated by the major voice of the community".

Or, as Hamilton said, "the constitution ought to be preferred to the statute, the intention of the people to the intention of their agents", assuming, as we do, that the constitution represents the will of the people.

And further, we have taken Alexander Hamilton at his word with regard to another matter. We have accepted his prescription that our judiciary should be made up of men and women "who unite the requisite (moral) integrity with the requisite knowledge (of the law)". We presume it to be the case that you are such South African men and women, and expect you to behave as such South African men and women.

Like Hamilton, we proceed from the position that our Constitution reflects the genuine will of our people. Accordingly, as it ensures respect for this vox populi, codified as our fundamental law, we must take it for granted that our judiciary knows, unequivocally recognises, and unreservedly accepts the legitimacy and inviolability of the will of the people that Hamilton said had to take precedence over the desires even of the elected agents of the people.

As you know, the Preamble to our Constitution says:

We, the people of South Africa,
Recognise the injustices of our past;
Honour those who suffered for justice and freedom in our land; Respect those who have worked to build and develop our country; and Believe that South Africa belongs to all who live in it, united in our diversity. We therefore, through our elected representatives, adopt this Constitution as the supreme law of the Republic so as to - Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights..."

We take it that the fundamental perspective spelt out in the Preamble of our Constitution constitutes the very essence of what must inform the conduct of our judiciary as it fulfils its role as "the faithful guardians of the constitution", continuously asserting the superiority of "the intention of the people to the intention of their agents".

As you know, John Marshall was the first Chief Justice of the liberated United States of America. At the Virginia Convention that ratified the US Constitution, Alexander Hamilton conducted a seminar on the Constitution for his fellow revolutionary and fellow delegate, John Marshall, on whose shoulders fell the responsibility to interpret the new Constitution, as Chief Justice of the United States of America.

In this instance, the revolutionaries who had liberated the American colonies from British imperial rule with guns and replaced feudalism with democracy, took on the responsibility to define and defend the legal order that would define the new society, including the Constitution they had drafted and approved.

They were both part of the revolutionary masses that overthrew British rule, and the new establishment that sat as the legislature, the executive and the judiciary of the new United States of America.

Accordingly, Alexander Hamilton could confidently entrust the protection of the people and the Constitution to Americans, such as John Marshall, a military officer in the American Revolution, elected Member of the US Congress, and Secretary of State, knowing that they were as much part of the new society that was being born, as he was.

And thus do revolutions not only succeed, but also manage to defend themselves, as did the American Revolution.

On 21 February 2001, the US Supreme Court decided the case "Board of Trustees of the University of Alabama et al. v. Garrett et al", which dealt with alleged discrimination against some people on the basis of their disability.

Without any suggestion of approval or disapproval of the determination made by the Court, I would like to quote part of the opinion expressed by Justices Kennedy and O'Connor who concurred with the ruling of the Court. Here is what they said:

"Prejudice, we are beginning to understand, rises not from malice or hostile animus alone. It may result as well from insensitivity caused by simple want of careful, rational reflection or from some instinctive mechanism to guard against people who appear to be different in some respects from ourselves. Quite apart from any historical documentation, knowledge of our own human instincts teaches that persons who find it difficult to perform routine functions by reason of some mental or physical impairment might at first seem unsettling to us, unless we are guided by the better angels of our nature. There can be little doubt, then, that persons with mental or physical impairments are confronted with prejudice which can stem from indifference or insecurity as well as from malicious ill will. "One of the undoubted achievements of statutes designed to assist those with impairments is that citizens have an incentive, flowing from a legal duty, to develop a better understanding, a more decent perspective, for accepting persons with impairments or disabilities into the larger society. The law works this way because the law can be a teacher. So I do not doubt that the Americans with Disabilities Act of 1990 will be a milestone on the path to a more decent, tolerant, progressive society."

In another case, Immigration and Naturalisation Service v. Aguirre-Aguirre, decided on 3 May 1999, relating to the correctness or otherwise, to deport a citizen of Guatemala from the United States, the US Supreme Court said, among other things:

"In addition, we have recognised that judicial deference to the Executive Branch is especially appropriate in the immigration context where officials 'exercise especially sensitive political functions that implicate questions of foreign relations'. INS v. Abudu, 485 U. S. 94, 110 (1988). A decision by the Attorney General to deem certain violent offences committed in another country as political in nature, and to allow the perpetrators to remain in the United States, may affect our relations with that country or its neighbours. The judiciary is not well positioned to shoulder primary responsibility for assessing the likelihood and importance of such diplomatic repercussions."

We have cited these two cases to illustrate two simple and yet profound observations. In the first case, judges of the US Supreme Court make the correct point that "the law works this way because the law can be a teacher" that helps to inform public behaviour.

It must follow from this that the interpretations of the law by our courts, as visualised by Alexander Hamilton, also serve as teachers that help to inform public behaviour. Necessarily, therefore, our judicial magistracy must constantly ask itself the question whether its determinations constitute the kind of teacher that should inform the views and actions of our people as they struggle to give birth to a new South Africa.

To answer this question correctly, in a manner consistent with the vision contained in our Constitution, the members of our judicial magistracy must necessarily feel as, and be part of the masses through whose sacrifices we are now able to describe ourselves as a democratic republic, as Alexander Hamilton was able to describe the United States of America as a democratic republic, in the aftermath of the armed defeat of British imperialism.

In the second instance, the US Supreme Court made the plain statement that while it respected the separation of powers, it also recognised the fact that these powers, operating as entities that, together, constitute the United States system of governance, are bound together by common national interests. Accordingly, it openly conceded the principle and practice of "judicial deference to the Executive Branch".

I dare say that this is possible because US history placed Alexander Hamilton and John Marshall in the same trench as US citizens, sharing a common experience of oppression, of struggle, of cooperation in the effort to give birth to a nation.

Accordingly, even as they had fought for and worked to defend the principle and practice of the separation of powers, they were also of one mind in upholding the conclusion that this vision had to be realised within the context of uniting the people of the United States and all their state and other institutions, in a common effort to achieve the grand vision spelt out in the American Constitution.

Between them they shared and espoused a common American dream. Because of this, it is possible for today's US Supreme Court to state, without hesitation, that in some defined circumstances, the judiciary should defer to the executive.

In "The Federalist, No 51", issued on February 6, 1788, Hamilton said:

"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
"This policy of supplying by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power; where the constant aim is to divide and arrange the several offices in such a manner that each may be a check on the other; that the private interest of every individual, may be the sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the state."

Hamilton says "a dependence on the people is no doubt the primary control on the government". Whatever the separation of powers, and whatever the interests of individuals, acting both in the private and public spheres, we derive our authority from, and are subject to control by the people.

We are meeting here today to reflect on the critically important matter of the transformation of the judiciary. I am convinced that to succeed in our task, first of all, we must define ourselves as being with and of the people whose struggles brought all of us our liberty.

As part of these masses, we cannot but be agents of change, for the kind of South Africa visualised in our Constitution, which shall guarantee for all our people human dignity, democracy, non-racialism, non-sexism, equality and prosperity. Without this commitment, this symposium will amount to nothing more than a mere and cruel pretence.

In their book, "Transforming The Organisation", Francis Gouillart and James Kelly, have written about businesspeople who face the challenge of the transformation of their companies. They say:

"Transformation...is the time when corporations leave the secure walls of the castle and step into unexplored territory. Though the dynamics of success may eventually lead to elation, it is not much fun in the initial stages. There are walls of reluctance and denial to break through, old values to discard, and new ones to assimilate. And that is usually painful, because the ramparts are thick, and they are made of human emotions and prejudices."

The results of your deliberations will tell whether you have broken down the walls of reluctance, discarded old values, assimilated new values, and established mastery over your human emotions and prejudices, honestly, and taken to the road that John Marshall of revolutionary America chose, more than two hundred years ago. The "better angels of our nature" of whom Justices Kennedy and O'Connor spoke, must now take charge.

Edited version of the speech of President Thabo Mbeki at the Judicial Symposium, 16 July 2003