Judge Dennis Davis
Are Judges Enemies of the People?
Judge Dennis Davis and Sir Jeffrey Jowell, QC - Are Judges Enemies of the People?
- All right, so for all of you that are on, very warm welcome today, and really is a warm welcome from LA with bright, sunny skies and a warm day. And I am delighted to introduce a new presenter today, Professor Sir Jeffrey Jowell, who is going to be in conversation with Dennis Davis. So Jeffrey, this is your first time with us presenting today and it’s a great, great honour and a great, great pleasure-
It’s my honour, Wendy, my honour.
Thank you, thank you for being there and you know, I really cherish my friendship with you and Francie, and, you know, and yes, so we’re are looking forward to hearing from you. And before I hand you, you know, I give you the platform with Dennis, I’d just like to just say a couple of words about you and introduce you. So for those of you who don’t know Jeffrey, he is a practising barrister at Blackstone Chambers in London and Emeritus Professor of Public Law at University College London. From 2010 to 2015, he was the Founder, Director of the Birmingham Centre for the Rule of Law, and from 2000 to 2011, the UK’s member of the Council of European Commission for Democracy through Law, known as the Venice Commission. He was educated at the universities of Cape Town, Oxford, and Harvard. He is the author of leading publications in the area of public law and has assisted in the drafting of a number of national constitutions. He has received a number of honorary degrees and awards, and was knighted in 2011 for his contribution to democracy, human rights, and the rule of law. So amazing, wonderful. What a wonderful career you’ve had, Jeffrey.
Thank you.
So now I’m going to hand over to another wonderful presenter, our esteemed judge, Dennis Davis, and the two of you are going to be talking are judges, “The Enemy of The People.” So over to you. Thank you, Dennis, thank you James.
Thank you very much, Wendy. And it’s a great thrill to do this with Jeffrey who deserves every accolade that you have mentioned and more. And what we are going to do is, for the first half an hour, slightly more perhaps, I’m going to ask Jeffrey a series of questions which relate broadly to the topic in hand, and then we’ll switch roles and he will ask me some questions. But I thought since you heard me drone on quite often on lockdown, that it’ll be better to spend more time giving Jeffrey airtime than the other way around. So forgive me for that, but I think it’ll be very fruitful. So Jeffrey, I mean bearing in mind the fact that you yourself have consulted, as indicated, a number of constitutions, we now notice that in many democracies across the world, there seems to be a turf war between judges and politicians. In other words, there seems, in fact, go further than that, certainly a degree of tension and conflict which has been noticeable. And I suppose my question to you is this, has this invariably been the case? And if not, why is it happening now? And if it has been, is the intensity of that conflict greater now than before, and if so, why?
Dennis, there is an inevitable tension between any government and any judiciary, sort of creative tension is what it should be. Really, that resounds in the notion of the separation of powers, which is an essential part of any democracy. The elective legislature and the executive are there to make and implement policy, and the courts exist to ensure that the policy and its implementation accord with the rules and procedures and the principles of a constitutional democracy. So their tasks are very different, policy on the one hand, assessing the legality of actions on the other hand. And government’s designs will therefore sometimes be thwarted or frustrated by judges, and no government likes that. But in a democracy, it simply has to be accepted that the government ought to abide by that in order to abide by the rule of law, which is an essential element of democracy. But what is concerning these days, as you rightly say, is that worldwide, a number of democracies are seeking to undermine the independence of the judiciary and even the legitimacy of what they call unelected judges. And in doing so, by their actions and also by their the particular criticisms, they are reminiscent of the autocracies and tyrannies of the 20th century, and this risk should not be underestimated. So in countries such as Hungary and Poland and Turkey and Russia, and there are more of them, alas, the courts have in recent years been packed by partisan judges, judges who would be naturally favourable to the government and need to be. And also, organisations that seek to assist people implement the rule of law are banned. And what is perhaps even more worrying is that the old democracies have not been particularly active in condemning this, and indeed, in some respects, are involved in a similar exercise of disparaging the judiciary and seeking to weaken the judiciary even in their own countries.
Let me just ask you that, why So before I get onto England, which I want to ask you about specifically in a moment, why do you think that is? What is going on? I mean, I can well get my head around the fact that in nascent democracies, you mentioned, for example, Hungary, which had a glorious record and then totally collapsed suddenly under or done. What is it, I mean, why is it that right across the world, whether it be in the United States, your own country, in England, India, my own country, in South Africa, there is essentially a greater, you know, the government and government upper have trained their guns on the judiciary more than perhaps would’ve been the case, say, 20 years ago.
I was going to say, they naturally are inclined to train their guns on those who thought their designs. It’s a natural reaction, they want to get on with governing, do what they want to do, and they don’t want to be frustrated by these judiciary who offer all are unelected and they’re elected. Now, I think what has happened is that when this started to happen, the old democracies and some of the organisations, such as the European Union, didn’t take much notice. The European Union still has not really intervened and sanctioned countries like Hungary and Poland. They’re beginning to think about doing that now. But for a long time though, well there’s a margin of appreciation. Oh, you know, everybody has their own democracy, taking the eye off the fact that there are some qualities of democracy. If you aren’t going to be in a democratic club such as European Union, then there are some fundamentals that you ought to abide by. And these are not optional extras. Everybody has their own form of democracy, their own kind of constitution, but in order to call yourself a democracy, perhaps the most essential feature of that is to respect an independent judiciary.
Well, okay, so let’s just talk, turn our attention to your country. There were these two cases that Mrs. Miller brought to your Supreme Court. I think Lord Pannick probably argued both of them, if I recall correctly, wonderfully, I might add, but that’s not the point. And for their pains, the Supreme Court, which seemed to me to have got it completely correct were then regarded as, called “Enemies of The People,” recalling, as it were, almost a Stalinist rhetoric in Britain. Now, that’s not usual. I mean, they may well have been criticism, I know in the Labour Party under a criticism judiciary, but this seemed to be as a level of intensity. And there’ve been articles more recently about Boris Johnson’s administration really being very much, as said, an enemy of the judiciary, if I could put it reverse the term. Now, is that so and what explains that?
That is absolutely so. The time was pretty fraught. The referendum of nine of 2016 in favour of Brexit had been passed and was going ahead. And both cases involved actually the power of the Prime Minister. Prime Minister in the first case was Theresa May. And she sought to trigger the exit to Brexit herself without going to parliament. So it was really the case, a very brave woman called Gina Miller then took this case to Gordon and said, this is the job of triggering Brexit can’t be the Prime Minister acting under her prerogative on international affairs, it must be parliament. Parliament got us into the EU, parliament must take us out, and we ought to hear what parliament has to say. So the case was a sort of very standard case of is this triggering Brexit within the power of the Prime Minister on her own or by herself or of Parliament? And the court, with a big majority, came down and said, no, this is parliament, parliament got us in parliament, has got to get us out. And at that point, the Daily Mayor newspaper, egged on by members in the government, called the, well, they did a number of things. They called the judges being as as part European when they held in favour of Parliament. They called Gina Miller, a troublemaker and an outsider. They called one of the judges openly gay, open mind, openly gay. And they all under the headline screaming banner headline “Enemies of The People.” What was interesting then was that the justice Minister, also known as the Lord Chancellor, was Liz Truss, who’s just been appointed our foreign secretary, by the way. And she’s possibly a, probably the favourite to succeed Boris Johnson, if ever he danced down in the near future. And she is bound to under statute law to respect, protect, and defend judicial independence, as well as protecting the rule of law.
And she languished for a quite a long period before rather per functionally indicating her support in very general terms for the independence on which the rule of law is built. And then later expressing her confidence in the judges. But at the same time, she wished to avoid interfering in freedom of press by censoring headlines. But as you say, the phrase, “Enemies of The People,” originally has echoes of the Roman phrase public enemy. And that phrase was employed frequently and chillingly in Stalinist Soviet Union and also in Nazi Germany, where it connoted not mere mere propaganda, but probably in practically all cases, it was a death sentence or a sentence into to exile. So, you know, she didn’t intervene, she allowed it to run. There was a second case, I won’t get into the detail of that, where Boris Johnson provoked parliament, in other words, he suspended it for 34 days. And the question there was can you do that? And again, the Gina Miller brought the case and she, she maintained that this wasn’t a, the advice of Boris Johnson to the queen in this case was based on an ulterior motive really effectively some other points is raised as well, namely, because he didn’t want any scrutiny of parliament. If parliament is parade if it’s suspended, can do nothing, can’t question or can’t scrutinise government policy, said at, at a crucial time for the Brexit negotiations. And again, the court held majority of 12 full court saying that this is really a, this cannot be done, parliament must be in session at that time, you can’t simply disband a parliament. And this kind of intimidation of judges and also of litigants, which is just as serious, really damages public confidence in an impartial and independent judiciary, as I said, at a time when we should indicate our solidarity with those battling in favour of the rule of war in places such as Hungary and Poland, et cetera, rather than emulating the assaults on, on the rule of war in tho in those places.
So let me ask you this then. I mean, you spent many years quite magnificently trying to inculcate the rule of law and, and written constitutions in many countries. And in fact you know, you had quite a, a well more than, quite a significant influence on many of us in South Africa, both terms of administrative law on broader constitutional law as we battled our own way out of apartheid into democracy. The question I suppose I have for you on this is that, are you not therefore kind of disturbed but mildly about the attacks on the Human Rights Act, and maybe even more than that, the fact that to some extent Brexit seemed to be partly fueled by this idea that judges implementing the European kind of human on human rights, conventional human rights, that somehow there shouldn’t be part of English society, British society, that in a sense is enormous an antipathy to a human rights act in your part of the world now.
Yes, so I’ve always found it strange because the European Convention on Human Rights, which is incorporated into UK law through our Human Rights Act, that was done by the Blair government in 1998, was actually drafted by English drafters, promoted by Churchill. And there were others sort of document really at that point when Europe was in tatters in terms of human rights and just about everything else. Incorporated, sort of almost codified our unwritten human rights principles such as free expression, no torture, nothing that anybody could really these days quarrel with the basic civil and political rights, not nearly as extensive say as the South African Bill of Rights, which includes socioeconomic rights, environmental rights, rights to good administration and so on. Much more extensive in South Africa. So it’s a pretty basic form of rights, but under the but the conservative manifesto required it to be reexamined. And there are many people who feel in this country that it gives judges too much power, that it is basically European, that our system of the common law, which in in any event in actually does incorporate a number of those principles should be preferred to any kind of code or statute of that kind. I should say that since then, I think the government have to some extent step back. They’ve said that we accept that we should keep the European convention is our basic human rights statute. It doesn’t have a constitutional effect where it has a very profound effect. And we should possibly even add few rights such as the right to trial by jury. It has been suggested. So they haven’t gone quite as far as they they might have, but still it’s under scrutiny and aspects of it may not survive.
Let me put this to you. I mean, I says, let me put to you what effectively I suspect some of those people who would’ve launched the attacks, which we’ve been referring to would say, they’d say, all right, so in a society with the written constitution, whether it be United States, whether it be India, whether it be South Africa, yeah, we can understand that, there, you’ve been stupid enough to give judges all these paths. We not like that, we don’t have that kind of written constitution. We have a parliamentary system and judges must not poke their nose in to our business, there’s a democratically elected parliament and they should be allowed to get on with their job and to a large degree, therefore, judges go too far. Mrs. Miller’s case is therefore would be an example of that. They would say that you’ve just got to accept that you have a system that should actually vastly circumscribed the role of the judges, perhaps as compared to societies where there is an entrenched bill of rights. What’s the response to that?
Our response to that is that after the atrocities of the Nazi regime and indeed the Soviet Union regime, which someone like Isaiah Berlin in his book, in one of his books said, couldn’t have been foreseen in the 19th century, couldn’t possibly have been foreseen in the 19th century, that kind of tyranny and the cruelty that went with it. After that nobody could define democracy simply by sovereignty of the legislature. In other words, the democracy that the majority, the will of the majority can prevail and the majority can do anything they like to any minority and can commit the atrocities that were were committed in those times. After those, what happened in the 20th century, even the mo the the most adamant adherent of sovereignty of parliament, and democracy in that narrow sense would have to say that democracies about more than that. It’s about the rule of law, it’s about an independent judiciary, it’s about a fair trial, it’s about not being able to torture people, it’s about freedoms and freedom of expression and freedom of movement and, and the right to life, and the right to vote all people, and a deep notion of equality and human dignity. So, nowadays the judges in this country, even without the Human Rights Act and the European Convention, are discovering within a democratic constitution within the whole notion of constitutional democracy, all these rights that are essential to a democracy properly so called, which protects individuals and protects unpopular minorities.
Yes, but you now use the word they’ve discovered this, surely it’s for the electorate to discover this. I mean, these judges are not accountable to anybody. Shouldn’t they be wary of intervening in policy matters?
Well, the electorate are absolutely entitled to set down policy. In other words, utilitarian calculations, what is the greatest good for the greatest number? That is the policy which is in the hands of the electorate and it’s in the hands also of parliament and the elected representatives. But they all act and we all must act within a framework of what kind of constitution we operate in. And a constitution that gives power to a government to do the kind of thing that was done in the 20th century or was done in South Africa during the Apartheid era. It doesn’t anymore count properly as a democratic constitution. They may be elected, the elections may even be free and fair, but this does not give licence to detain people without trial. And judges in that respect are the guardians of a democratic constitution. It may be at some point that parliament will say, well, we don’t want to be democratic anymore, and there’s nothing you can do about it. And they may well win, and the judges because they don’t have much power or are not supported by an army may lose. But while they are there, they are there to defend those aspects of democracy that operate even in an uncodified constitution, but can be found in many principles and precedents along the way.
Then you get a position where you have a written constitution,, and I’m compelled to ask you this. I mean, just let’s take the abortion case in the United States, the the Dobbs case, I mean now you’ve got a supreme court that is definitely, it looks like and it poke its nose into very significant settled policy and is going to overturn it. Now, who gave them the right to do that? The vast majority of Americans actually think that that people should have an abortion. And more than that is over 50 years of precedent, right? Isn’t that the danger of giving judges too much power?
Dennis, that was one of the questions that I was going to ask you.
All right, I’m happy to answer that my way, Jeffrey, fair enough.
Okay.
I that way you’ve agreed you have do that one, but what I, so you, you prepare that answer while I’m speaking. But what I would say, this is what I am disturbed about what’s going on in America for the same reason I’m disturbed about what’s going in the UK, I mean both countries are, Biden was elected that basically democratic societies under the rule of law, basically, there’s no question about that. They’re not like some of the other countries that I’ve been mentioning yet. But it can happen very quickly as we almost so on the 6th of January last year. But we was never take our eye off that. But what does disturb me too in the United State, particularly when all these other countries are questioning the very notion of democracy, is the fact that although I think there’s 60 judges in the United States have held that the election of November, 2020 was free and fair and was not rigged in any way whatsoever. Still today, apparently the vast, certainly a significant minority and maybe even a majority of at least Republicans in the United States still believe that it was a rigged election. And the view of the judges seems to have had no effect what whatsoever, or again, the judges are being disparaged and they’re being considered simply political.
Given time, I have two final questions I wanted to ask you. I mean, we could debate this particular issue for a long way, but let’s just, let me try to concentrate two other questions. Again, I know that you advise on constitutions in what I suspect we could call the developing world. How do you respond? And it’s certainly an issue that has come up even in South Africa and certainly once my students, you know, who argue this, that where’s the notions of the rule of law and human rights are not suitable for a whole range of countries, that there’s a kind of Eurocentric conception of rights that you’re seeking to impose on them, and that their main job is to develop their economies and finished and stop with all this stuff?
Well, you’ve got to ask what democracy and the rule of law does. And for me it steers a course between, on the one hand arbitrary decision making and on the other hand, anarchy, and the rule of law has certain qualities like, legality, everyone has obey the law, including the government, legal certainty, law must be clear, you shouldn’t be punished for crimes that aren’t clear, equality, equal human dignity and access to justice, which we’ve been talking about. In other words, being able to challenge decisions about that have been made about your life, by means of a fair trial and an independent judiciary. Now are these concepts only for developed countries for the North and not the South and only for the West? And I think it’s a condescending view. I think that, you know, ask anyone, of course we all want economic development, but we also all want freedom and we want protection from the arbitrary and and from corruption and oppression on the grounds of religion and race. And we want fair trials and we don’t want judges inevitably and ably to be on the side of the government of the day. So I think it is a universal concept as his democracy, and I only wish that we were all confident. I mean, that our governments were confident enough to proclaim this and insist on it throughout the world instead of really rather taking a bit of a backseat.
Then what do you say to the situation whereby people in developing countries desperate to ensure that their economies flourish, that in fact inequalities are reduced. Look to countries like China and Singapore, the fact that China has lifted people out of poverty to an extent that no other countries experienced probably in history. And countries like Singapore seem to grow exponential rates, and they show that the rule of law is not necessary for economic development prosperity. So how do you answer that kind of criticism of developing? You must have come across this.
Yes, well, of course, and one mustn’t be naive enough to assume that people are necessarily going to buy rights above economic development, but and it is somewhat of a surprise that the Chinese autocratic capitalism has survived without sort of civil and human rights and civil liberties because we always thought that the two went, the liberal economic and liberal politics went together. They’ve shown that they don’t necessarily go together, but that doesn’t mean that the qualities of freedom of expression and safety from abuse of power are values that we should say take should necessarily say take second place or aren’t important. And again, instead of cast ourselves casting that on our democratic institutions, but we should do even more than before to say that we should strengthen them, we should trumpet our faith in judicial independence in the rule of law, aspires human rights, and we should not malign and disparage our own judiciary, ‘cause we’re making it or make it more difficult or impossible for even our own citizens to have access to justice. So in other words, I think the two are connected, that the last thing we should do is capitulate on this and say, right, economic development is all, it’s not all. Well done China, we may have to trade with you, we may not be able to shout as loudly against your practises as we would like to do from time to time we might have to adopt compromises, but that in no way reduces our commitment to our system of limited constrained democracy and legal accountability, because if we do that, we play into the hands of democracies that doubt us and outro right foes elsewhere.
Okay, Jeffrey, I think that given our agreement, we can switch roles now for the next 20 minutes and then hopefully answer a few of the questions.
Oh, Dennis-
Put me in the doc now it work.
I’ll will no way be able to give you as difficult questions that you gave me, but I have no doubt that your answers will be much better.
You’ll get you every.
Let me throw one of the walls back at you.
Yes.
To what extent should judges you as a judge, as an academic, as a look, you’re an expert I found out in these series in music, in art, in all sorts of religious matters and so much more. So you are the ideal person to answer these questions not only from your judicial legal experience, but your world, your worldview. So to what extent should judges defer to, do you think the judges should defer to democratically elected legislative and executive choices?
It’s really is a difficult question to answer, because if I could just take my own position as a judge, you get, let me give you an illustration, the very first socioeconomic rights case of any meaning that came to South Africa came to me and a colleague, it was a case called and Mrs. Irene Herbom and I mean, you know this, but the audience perhaps doesn’t, it came to our court to ask for, to vindicate the right to housing, they were all living in the felt, the pouring rain. They were finally put in a soccer changing room, which was the best that could be done in the circumstances. And the question was what obligations did the government have? And the government puts up a whole range of arguments saying we don’t have money to do more than this, that and the other. And therefore, you know, if you give Mrs. , we’ll not be able to give Mrs. Darmini the medical care she wants. So judges always have those kind of, if you wish, balancing exercises. But I think you are right, I think once you’ve got a bill of rights, which commits itself to certain social and economic goods, at least this, the judges got to say, can you please justify your decision? And I think a culture of justification as our mutual friend, late friend, Etty Murrani once put it in relation to South Africa is what judges are about.
I can’t tell the government to build so many houses or so many medical clinics, but I can say to them, explain to me why they aren’t those, and if you can’t do that, then please give me a plan which indicates how you are going to ensure that those rights are to be, are to be vindicated, are to be implemented. And I do think therefore it’s an exquisite balance between saying, I’m not running the country. I used to say to council very often, Please understand, I can hardly, if you come into my chambers, you’ll notice that I can hardly run my own chambers, so this organised by that, I can’t run the country, but I can say to government, there are certain commitments that you have and why, because we’ve democratically decided those are commitments which are the most intercom as commitments of our society. We want to live in a society where people can live with a level of dignity. And if you can’t do it, you better tell me why. And the culture of justification, which is what I think judges in Cisco, allows us to go further than the obvious ones, which are equally important. And given the South African experience or any other oppressed society’s history, obviously the ones you’ve mentioned, the rights to not be treated arbitrarily, the rights to freedom, the rights to expression, all of those, those seem to me, we safeguard that’s easier to deal with, when it comes to the broader questions of policy and socioeconomic rights. I say the justification argument comes. Now, if I can make one other point on this, there’s a very big difference between, as it were, decision making by government on policy and legal decision making, decision making on policy can be on any basis, I mean they can decide on any basis why they want to do A, B or C, we judges are bound by precedent. We are also bound by legal materials. We bound by the case that has brought to us. So we can’t make things up entirely. We are also constrained, but within those constraints we try to follow, as it were, a culture of justification, putting to government that power which must be exercised one way or the other has to be justified. How so in terms of the ins commitment society, what are those contained in the constitution.
Dennis, that’s fine and I understand that, of course, you in South Africa have got a very difficult task as a judge in enforcing socioeconomic rights, the right to housing, the right to clean water, the right to healthcare and so on, much more difficult than the basic civil and political rights, which we’ve been over already. But what happens if they, you know, when talks about justification and Eddie and Marionic said, we’ve moved after Apartheid from a culture of authority where people just obeyed and did what they had to do to a culture of justification, and you’re applying that in the kind of case that you mentioned. But what happens if they simply say, well, our department has no money, we just can’t do it. And and what does that do to the legitimacy of the right, this great right to housing clean water and so on? If it can be justified simply by saying, sorry, haven’t got the cash.
Well, Miran put an argument up Jeffrey, which seemed to be so precedent for South Africa, so let me share it, his argument was that if you came along Jeffrey Joel QC and was arguing behalf of a whole group of homeless people in South Africa for the fact that we have a right to housing, and that there has to be at least a progressive realisation, meaning you have to do something, got to provide people with tents, perhaps with running waters, sewerage, that sort of thing, basic communities and government said, we have no money. Uranic only said, well, what would be a case if the government spent all their money on submarines, you know, and by the way, bearing in mind we had an arms deal in South Africa, which wasted billions of rand is a pretty precedent example. And the point is, I think as a judge you’re entitled to say, I can’t tell you to spend X or Y, but please explain to me how it was that you could spend all that money on X, but Mr. Gil’s clients are going to have to suffer and they can’t get anything, and you know, one of the things that I’ve learned over 23 years on the bench, and I’m sure over the many years that you’ve litigated human rights cases, you found the same, is when the government is put to the proof as to justify things, all sorts of strange things occur. One, either they do find the money or they do make some compromise efforts, or the wonderful thing that I think we developed in South Africa, which is not a South African invention, some has come from other parts of the world, is what we have where the judges engage in say that the parties must engage in a consultative process. So you say, go away and try to settle this case on the Farina and come back to me with a report, and if you can’t and then I will try to sort it out, which allows, as it were, a level of flexibility without the judge actually making a call. Say, yes, of course they’re difficult cases, but the whole idea here was in fact to ensure that at least this, the government has got to make an effort and that effort means it should actually think very carefully how it spends its money and its priority should be as it were to quote John rules the poorest to the poor.
Thank you. So do you think that judges perhaps are given far too much power in democracies with the written constitution and the Bill of Rights, particularly with socioeconomic rights chucked into the Bill of Rights?
I think we’ve got to be very careful, let me put it this way. And I think that we need, you know, we can’t run the country. And I say that certainly I say that my colleagues say that, we can’t run the country, but we certainly can seems to me ensure that the government knows there are parameters within which policy have been made, and those are legally based parameters and that’s how it should organise itself as best it can. And frankly, if you take South Africa as an example, there’ve been some glorious, glorious judgments which have really helped take, for example, the judgement . And it’s a good example to a question that you’ve put to me of the feeding scheme for schools where given the COVID period, all of a sudden department of education shut down the feeding scheme for school kids. And that meant that many kids in rural areas were starving. They didn’t get the one decent meal today. And a group of non-governmental organisations approached the court and said, on what basis can the state stop this? Of course the government gave a whole lot of both COVID and other related, and so the judge was totally unimpressed, said, you go away and give me a plan as to how you’re going to do this, but do it. You have to, and you know what, that’s exactly what happened. And thousands of lives of little children are saved thanks to a carefully constructed judicial intervention.
So you asked question now, if the judiciary are to act as a break on the power of the other two arms of state, what’s your view of the present United States Supreme Court? In a recent article in the Guardian, Professor Lawrence Tribe spoke about the US Supreme Court being complicit in the threats to the US Constitution actually complicit in those threats. How do you read that?
It’s an firstly just, just our, I mean, professor Lawrence tribe is someone we should take seriously, I mean, you know, and our audience should know that he’s one of the most distinguished American constitutional scholars of the last period. And I am worried about that, I mean, that is, you see, that goes back to how you appoint judges. It is quite clear that Donald Trump was absolutely determined to subvert the court from its general centrist murderings and appoint a whole bunch of people who essentially affected these ideology and what they’ve done. And I think the minority in the argument in the Dobbs abortion case were quite right. It’s when you actually chuck away precedence of over 50, 60 years for no basis other than your own religious belief, well then you’ve gone from basically judging to divination. And what you do is you essentially delegitimate the court. And I think what Lawrence tribe is suggesting and why he’s anxious is because given the threat of another Trump presidency and the idea that effectively all sorts of laws have been put in place to subvert the electoral process. And of course I come back to your point about judges should be in insisting that elections are free and fair, he’s obviously anxious that these politicisation of the judiciary will in fact facilitate this project rather than in fact keep alive the fundamental constitutional framework within which the United States of America supposedly lived for over for 200 years. We should be desperately disturbed by that. But it’s a warning how best to appoint judges. I know you know, in United Kingdom you kind of almost followed us I suppose to some extent. I don’t think our system is perfect by a long run. We discovered recently that the A and C as a deployment committee that makes recommendations to its members on the judicial service commission as to who should be there raising questions, how independent the process is.
At least we found that out. I think one of the crucial questions is how you appoint judges, and we need to have a proper debate about that. Because if this works as it did in the United States where there was a cynical prevention of me Garland being appointed, simply because the Republicans didn’t want him, which was a disgrace. And then pushing through of people like Kavanaugh and Coney Barrett, who clearly were going to disregard precedent, you’ve got to ask yourself, you’ve got to deal, and I’m not sure what the answer says, but we need to have a debate about it. What’s the most appropriate way to appoint judges that, that because techs are constitutional techs are by their nature very open-ended and you therefore need to be guided by the precedents that have come before you, even if you want to craft a new innovation to disregard it, really, it’s a dangerous process. So I’m very anxious about the United States Supreme Court at the moment, because I’m particularly anxious as everybody else’s in the future of American democracy. I can only hope this is a passing phase, but I think it’s a wake up call for us. And certainly in South Africa there are debates. Now I know my colleague in dear friend Professor Hugh Quarter is writing a piece about how we should revamp the Judicial Service Commission to make it a better body in order to make appointments. That’s where the debate has stand.
I remember being involved in some of the discussions of the South African judiciary, and indeed it was adopted in the UK but in a much pure form, the UK has no politicians on the appointments-
That’s exactly what we shouldn’t have, yeah. once the politicians-
Where the Lord Chancellor did all the appointments through a sort of tap on the shoulder in it’s what are called secret soundings went from that to an independent commission based on the South African, but without the politicians being members of it.
If I can just make one final observation on that. When the initial South African system worked and was quite a good one, the president who was President Mandela at that time, he had four appointments that he could make, and he made them from people who were not politicians. He made them, you know, the most distinguished human rights lawyers and in one case even a trade unionist, who brought an extraordinarily important guy called John Eaernston. I was interviewed by him when I was appointed back in 98, and he made extraordinarily constructive contribution to the debate, one say but now what we’ve got are all these politicians who dominate the process and it is clear from the evidence, this is what happens. Same thing in the States, they caucus, they decide it’s going to be Kavanaugh, they decide it’s going to be X in South Africa and it doesn’t matter. We all know that there’ve been astonishing emissions in South Africa of appointments to the bench, to the constitutional courthouse recently, and let me be blunt, Judge David Holter, who one of our most brilliant lawyers and why he doesn’t get there, you know, who the goodness knows. But the point about it is in a decent process he would’ve been on the court and the court needs him. So you’re absolutely right. The greater the political influence, the less the quality and the United States is now paying the, paying the price for that.
Dennis, probably the final question so we can get some questions in.
Yeah, sure.
How important has the South African constitution been looking back over all those years? You know, the discussions that I mentioned and particularly the bill of rights, which was by no means sure to be introduced right at the beginning. How important has have they been in sustaining and protecting the rule of law and human rights and standing in South Africa between possible autocracy and democracy?
It’s perhaps been the single most important thing other than I accept some very vigorous civil society action when Jacob Zuma was the president, which certainly contributed to his downfall. But the judiciary is consistently, yes, of course they’re always odd cases, but the judiciary is consistently, I think, vindicated the promises of our constitution, there are criticisms that our present constitutional court is not quite the same as a stature of the first court, that’s probably correct. But at the end of the day, right across the board, judges have held the government to account, you only have to look at all the cases in which Mr. Jacob Zuma the ex-president, has been defeated in court where judges have held the line and ensured that all of those values and rules that you were talking about at the beginning have been asserted. Let me make it absolutely clear, I have sat served there for 23 years, and I’m particularly proud of sitting on the bench with many, many black colleagues who would’ve been very, would’ve come under significant pressure. You know, just the other day the minister of tourism then Lindiwi Sisulu disgracefully attacked black judges for being Uncle Toms. What she was really saying was these were judges who were asserting constitutional values and they were letting down the side, if I could put it that way. And the fact that they’ve let down the side is and that they’ve basically ensured that the constitution prevails is to their absolute credits. And I still think it’s the best chance we have for getting through the difficulties we have at present and coming out on the other side in terms of the kind of constitutional society that was promised when we drafted it back 26 years ago.
Thank you Dennis.
Right, I think we should have some questions, Jeffrey.
Yeah, I agree.
I’m going to get onto the chat line and I shall, let me just deal with this.
And Dennis, may I have question please?
Yes, of course.
So thank you. Sorry, you know, I don’t like to push in, but, so can you elaborate a little bit more about what’s just been going on and the responses and where’s that landed to date?
Sorry, what’s this? What has gone on Wendy, I didn’t hear.
Yeah, no, with the attack on the constitutional court. So, where has it landed now?
Well, are you talking about the physical attack on the constitutional court? The man in-
Yes, yes.
That was one deranged I think, I think it’s fair to say that was one deranged individual who was a disgruntled litigant and came and smashed the win couple of windows in the constitutional court and damaged the door. It doesn’t appear to be, thank God, an organised attack on the constitutional court, although it was extremely disturbing that the police, et cetera were so lethargic in not preventing it from occurring in the first place.
[Wendy] So, and okay. Okay, thanks, I actually was referring to the comment that you’ve just made about-
Well the one that about Lediwi Sisulu. I think that was directed particularly people interested in South Africa. I think that was directed at the very courageous and principled report that the acting Chief Justice Raymond Zondo has just issued the first of three reports and state capture in which he has not held. And he’s basically found the ruling party to be endemically corrupt in all sorts of ways, which I can elaborate upon if you want. But at the end of the day, I think her attack was an unbridled attack on him because he wasn’t prepared to sort of just let this all go. And it reinforces Jeffrey’s point that we have as a judiciary defended the constitutional and its values. And I cannot overestimate the importance of the report on state capture. If people are gloomy about South Africa and they’re entitled to all sorts of reasons, including the parliamentary burning and all that sort of stuff. But that this report has come out from a judge and has held the government to account in every single way without fail, it’s just an extraordinary manifestation of the independence by judiciary.
Has anybody held up the mirror to her, you know, as representing her father-
Well, I haven’t, I’m interested in that, Wendy, I’m not yet sure.
Okay, thank you.
Because only a couple days ago, yeah.
Q&A and Comments:
Alright, if I can just, I have a question Jeffrey from Ruth says, “Why I speak largely from ignorance, why are so many Black Americans this Fran trust, how can you get two justice when judges are appointed politically and benches are almost always biassed?” Well, I suppose I don’t agree that they’re always biassed, but then if you want to make a comment.
Well the question is why are so many Black Americans disenfranchised as an interesting one? Because at the moment, in many states in the United States, efforts are being made to disenfranchise even more Black Americans.
No, that’s problem, yeah.
By doing away with the postal vote and proper objective scrutiny of elections. And I think that again is a blow to democracy in the United States, at a time where this just should not be done for the benefit both of the United States and also the rest of the world. The US must when undertaking such actions, realise that the world is watching and the world will copy.
I’m afraid you’re dead right. And I’m afraid that is what I do agree. And there has been a deliberate attempt. Of course there are bias ventures all over the world, but I think in relation to disenfranchisement, particularly a Black Americans, it’s a cynical ploy to ensure the perpetuation of what will be white minority rule by, by a Republican party that has lost any moorings in some significant way. With the kind of constitutional commitments even though I disagreed with previous Republican administrations, the truth abouts that at least were constitutionally compliant, unlike Mr. Trump. I’m going to knock to all questions 'cause it’s been possible to answer them, but I’m going to go, Ron asked the question, Jeffrey, I’m going to direct to you. Should the EU expel countries that seriously undermine the rights of their people.
But of course they should. I mean the EU is, in order to get into the EU, you first have to be in the past the waiting room of the Council of Europe and the Council of Europe is the body that operates the European Convention on Human Rights through the European Court on human rights. So step one is, are you a proper democracy? And if you are, then you get the step further and you apply for, for membership of the EU and then you’re taken in the EU if you tick all the boxes. And if you don’t, if if you then untick the boxes when you’re in there, the opposite should happen, of course you should be expelled.
Yeah, there are questions here which I’m glossing over 'cause I think we’ve actually answered some of them. Susan asked the question, can you comment on the Attorney General’s role in the Trump administration and also part of the media is playing in the decline of democracies. It’s a really important question, including the United States. I think, well if we are talking about the role of the Attorney General and the Trump, I suppose the only thing he did at the end of that to commend him that he didn’t actually accept the fact that the election had been fraudulently won. But you know, that’s the danger and that’s my anxiety going forward. If Mr. Trump comes back into power, man, you haven’t seen anything yet, this is going to get much worse, that’s the problem. Jeffrey, the question to you, how can a bill of rights, can we have a bill of rights without a bill of human responsibilities?
Well, and I always think, and a couple of the constitutions that I’ve advised on, I’d been quite happy to call a bill of rights, a bill of rights and responsibilities. Because each right is a responsibility of the government to enforce for one thing, and secondly, there are many rights that require mutual respect, mutual acceptance of other people’s rights, the right not to invade, the rights in the constitution of everybody. So there are a number of responsibilities already within any bill of rights. So the right, the responsibility not to be involved in other, the torture of other people, to allow them to be free to do what though, not to interfere with their freedom of expression, that sort of thing. I think there’s the other side to it on each education. And if you look at those rights, the right to privacy, for example, that many of them do require responsibilities on the part of individuals as well as the state.
Yeah, James, there are a series of questions you put, I think we’ve answered them and I’m sorry if I’m going to gloss over that, but I have to come now to Josie’s question, which I know, she says South Africa’s and Lediwi Sisulu rights this week, there’s a need for an overall of a justice system does not work for Africa and Africans. If the law does not sufficiently address the issue of the food fight, the law will fail. And inevitably it’ll play out in the streets. We have a neoliberal constitution with foreign inspiration but who are the interpreters, now I’m not sure, and then you go on to say then where is the African value system is constitutional rule of law if the law does not work for Africans in Africa, then what is the use of the rule of law? I’m not sure how much of that Jersey is yours, and how much of that is Lindiwe Sisulu’s. My reading of Lindiwe Sisulu as I put it out earlier. But let me say a couple of things. It is absolute nonsense to suggest that our constitution is a near liberal one. I mean, that is absolute and I’m sorry to use the words. Okay, very annoyed when I hear that. A constitution which is a social democratic one, which as Jeffrey and I have discussed, provides a whole range of basic rights and goods, sorry, services and goods for people through its socioeconomic right provision that has a substantive provision of equality, which in a sense provides for rights to education, et cetera, is not a neoliberal one, it doesn’t seek to reduce the power of the state to a night watchman. It seeks to ensure that the state is central to the wellbeing and welfare of the country. And let me make this perfectly clear, it’s not a constitution that is simply Eurocentric, a fundamental value of it is obuntu, which means that I am myself through you. It has a communitarian African vision. And the judges have basically emphasised that on many occasions that in fact we do do that. That is why it is argued in South Africa that we’re there to be mandatory vaccine litigation. It’s likely that unlike perhaps in the United States now as Supreme Court, they will be upheld because we believe in a community as opposed to individuals, and that is sourced very much in African values. So to be perfectly honest with you, the fault is not in the Constitution. The fault as Judge Zonda has put it, is in the fact that we’ve had a government that has been rent seekers rather than deliverers of basic goods and services at the expense of the poor people, then it’s a terrible problem. Now there’s a question here, which I do want to put-
Could I just add to that?
Yes, please, please.
I was in South Africa at the time that the Americans offered to write the South African constitutions for South Africa.
Yes.
And then the Germans came in and said, well, and we thought at that time, perhaps the American constitution was a great constitution, and there are aspects of it that are, but we now know for various reasons that have been, some of which have been discussed tonight, but maybe it’s not such a great constitution, because of the pro of certain problems that we’ve seen over the last few years. And then the Germans came in and said, look, ours is a post conflicts at constitution much more appropriate. And Nelson Mandela, to his eternal credit, said, no, no, we want an in a constitution that arises out of our own culture, our own history, bad and good, and our own values and that, and he fought some of what might be called neoliberals by saying we’re not only having the basic civil and political rights, we’re having socioeconomic rights, environment, right to good administration, and the very concept of equality in its broadest sense, and other a aspects such as which aren’t, weren’t then in any other constitution such as academic freedom and so on. So it is a constitution that is completely rooted in South Africa, and the best thing that he did was to reject those tempting offers and writers proper South African constitution.
Yeah I agree, I’m totally with you. There’s a question here, how can judges talk about the rule of law when they’re treated as a living document and change the interpretation accordingly, changing circumstances? I suspect we could have a whole course on that. So I’m going to ask you and then I’ll make a comment.
Well, I think that the rule of law itself is lot of people say, you know, it’s completely vague means everything to everybody and nothing to nobody. But if you break it down into this great book by Tom Bingham, who on called the rule of law, which I recommended that-
Book, I recommend it strongly, yeah.
2010 penguin, he breaks it down into about 10 characters. What, as I said, difficulty in explaining it, is that actually contains what I think, you know, four or five ingredients as you call them. So it co consists of a number of features, all of which hang together, and as I said, legality, certainty, equality, and particularly access to justice and a fair trial before an independent judiciary. That all those things together are the rule of law. They will expand, for example, let me say, just say something like freedom of expression outside of the rule of law, very different now in terms of media than they were before we had Facebook and the like. And so there, there has to be development to catch new new scientific and other developments, and developments such as the internet and so on. But the basic principles are the same and simply adapt to a new environment.
I mean, you see, it’s a fallacy. The question based on a, on an assumption that just doesn’t exist. You can’t, in reality, if you going to simply say it’s not a living document, then do you go back to the origins of the US constitution where, for example, you know, all forms of awful torture might well have been the case. The answer is you’ve got to engage with the fundamental values, which underline it. I think your great colleague Ronald Kin, was absolutely correct when he said, what you try to do is you read the document as a whole to ask yourself what are the an animating values, which flow from that document when you read it as a whole. And that then guides your interpretation. Now, if you took the abortion case, frankly, I find that extremely difficult to believe, that if you read the entire Bill of Rights as a whole and asked what were the fundamental animating values, which essentially described that American Bill of Rights, the amendments best, that you would now check out 55 years of Ray versus 50 odd years of Ray versus Wade. And it’s our job to do that. But as I indicated, the job of engaging with a constitution, which requires interpretation because by natures bill of rights are open-ended, equality is an open-ended texture. A hundred years ago or even less were weren’t voted. Now are you suggesting that we’d be imprisoned in that particular conception? But you still have to, you have to be guided by putting out there on your judge in your judgement why you say that these are the animating values you have to put there. Why in fact, president either hold or doesn’t hold, and what will be your reason for overturning president, which is based on plausible legal grounds. And it’ll be let me bet you that when you look at the majority in Dobbs, if they’re overturned Roy versus Wade, there will be a complete absence of that. There was a question, Jeffrey, to you, it seems to me because you the are Brexit man, which suggests that, ah, is there a parallel between those people who rushed to court who were the remainers in England and those people in the United States refused to accept the outcome of the US election?
It’s an interesting, I think it’s an, let’s put it this way, a loose analogy law and any parallel
Yeah.
But, and it is true that sometimes litigation can serve a political end. But I think there were also, in this particular case, there was principle. And the principle was that parliament should prevail in this kind of case over the executive for very, very good reasons in both the Brexit cases and the unanimous Supreme Court supported that. And in the United States, those seeking to overturn the election found the courts completely and unanimously hostile to them, because there wasn’t the evidence. So there in an interesting, very interesting analogy, but I think it breaks down in many respects.
I’m going to just take a couple more 'cause I see we were over the appointed hour. Let me try to answer one and I’m going to put one to Jeffrey. I do apologise that we can’t get through all of them. Patricia, when you talk about tribal law, I think you’re talking about indigenous law in South Africa. I’m not entirely sure what you mean, which sometimes becomes an opposing argument, but I do want to tell you that indigenous law vernacular, African customary law has been used in a number of judgments to great effect recently in a judgement dealing with , the court there, I think rather magnificently showed that ordinary indigenous or indigenous law was not retrogressive. That it worked to the advantage of the community and not a few rent-seeking chiefs. And effectively what the court did was exactly what the constitution asked it to do, which was to incorporate the indigenous values. Goes back to an earlier question into the constitutional schemer. And I think very well, and then I’ll ask, Jeff, I’ll put this question to you. Lauren says, isn’t democracy under greater threat in the UK and the USA from lobbying industry and large corporations paying MP’s consultancy fees to get the legislation that seats them?
Yes, I think it’s completely outrageous. I mean, the Supreme Court case name of which I can’t recall, allows all kinds of lobbying and campaign finances to have no limit whatsoever. So it totally legitimises money as a factor in manipulating elections in the United States. Ronald Walken, who you mentioned recently thought that that was one of the worst decisions ever given by the United States Supreme Court. And I would tend to agree with that 'cause it completely undercuts the equity of an election. And in the United Kingdom too the kind of blatant lobbying that’s taking place, I think is quite outrageous as is, for example, putting people into what our legislature through the House of Laws. 'Cause they’ve contributed large sums to a particular political party and it can be any political party and has been, and that is corruption.
I see there’s I have to read this hello to from Sue Hall, which is Jeffrey Jar from Suzanne Lip Adler in Cape Town. I remember when you lived at Viz End in Bishop’s court and we were just down the road.
I too remember, and I have very happy memories of that and oh, to get to Bishop’s court, et cetera again, but over the last couple of years we haven’t made it for a clear reason.
And Sue, you do ask as to why Mr. Justice Wallace, Mr. Justice in weren’t appointed to the constitutional court. I dunno why, but I agree with you entirely. It does appear that many of the other questions do really repeat answers that we’ve.
And just can I just make one statement about the
Yes please you can.
Constitutional court, it’s one of the great courts in the world, since it was founded, it has been cited for its individual and collective judgments. It’s a guide to the rest of the world, it does things that other places have not done. It is hugely respected. What amazes the outside world, however, is the fact that there are so many outstanding advocates and other lawyers in South Africa who would also grace as do members of the Supreme Court, the great court to any great Supreme Court in the whole world, and have not been appointed to the bench. And this seems to us sad and damaging for South Africa and damaging for the world because they had so much to contribute.
Jeffrey, thank you very much. I should add, just by way of conclusion and thanking you, of course there are also a whole lot of you who live South Africa to our great cost and to the great benefit of countries to which you’ve gone, including England. And of course I can’t, but help mention how many wonderful lawyers have come through United Kingdom, some who’ve contributed academically and in practise like you and some have gone onto the bench. It’s been an absolute pleasure to have done this with you. Thank you so much and I hope everybody else enjoyed it as much as, as I did. And best for 2022 to everybody, good night to you all.
Thank you so much Dennis, and thank you Jeffrey, for a very thought provoking interesting presentation, and I’d love to continue this.
Pleasure.
Discussion. Thank you very, very much.
Take care. Thank you so much, please send my love to Francie, and of course to Claudia and to all of you, thanks for joining us. Enjoy the rest of your day or night, thanks, bye-bye.