The Chief Justice’s decision to call an urgent meeting of senior judges to discuss these alarming developments – including the Executive’s apparent predetermined decision not to adhere to a court order of the High Court in the Al-Bashir case – is vital for our constitutional democracy and the Rule of Law in South Africa. We also welcome and support the Chief Justice’s decision, following a request by the Heads of Court and senior Judges of all Divisions, to meet with the President in order to raise the recent attacks on the Judiciary by the Executive and some politicians, but also to address the government’s apparent disregard for court orders.
The Constitution is supreme and any conduct is subject to the Constitution. Politics are not above or detached from the Constitution, but subject to it. Parliament and the Executive derive their powers and competencies from the Constitution – powers and competencies which are also limited by the Constitution and subject to scrutiny by the Judiciary.
The Judiciary has a constitutional duty to uphold the Constitution, to interpret the law in terms of the Constitution and to declare invalid any law or conduct inconsistent with the Constitution or the law. As such and notwithstanding the doctrine of separation of powers, the Judiciary is the final authority on the interpretation of the Constitution and the law. No person or organ of state may interfere with the functioning of the Courts and all organs of state, through legislative and other measures, must assist and protect the Courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. Moreover, an order or decision issued by a Court binds all persons to whom and organs of state to which it applies. It is time for the Chief Justice to convey this message to the President, the Executive and Parliament in no uncertain terms. Our constitutional democracy depends on it.
By Adv Johan Kruger, Director: Centre for Constitutional Rights