It is deeply troubling that president Jacob Zuma appears to misunderstand the relationship between the three arms of government. Each arm, in its way, is superior to each other arm. And the courts absolutely can overrule the executive.
I write this from Las Vegas, where I’m attending FreedomFest 2011. Among the many instructive, surprising and liberty-affirming talks, an introduction by David Boaz, executive vice-president of the Cato Institute, made me think of Jacob Zuma.
Boaz noted that in the last few months, the US Supreme Court has struck down a number of laws, including the State of California’s ban on gay marriage, Arizona’s anti-immigration law, and parts of Barack Obama’s socialised healthcare bill.
There are numerous issues in the US that would, if subjected to simple democratic choice, be changed, and not all of them for the better.
One could go even further, and argue that there are numerous issues that in a constitutional democracy should not be subject to the whim of the majority. If a minority of terrorists attack an innocent majority, the fate of the terrorists should be subject to constitutional guarantees, and not the whims of the lynch mob. More broadly, if the majority are white, the rights of coloured people should not be dependent on the consent of the whites. If the majority are straight, the rights of gay people should not be dependent on the consent of heterosexuals. If the majority are religious, the rights of the rest should not be dependent on the rules imposed by those religions.
Boaz’s point was that the US Constitution continues to protect the American people, despite encroachment on their rights by the legislative and executive arms of government.
Not everyone was as sanguine about the health of that country’s constitution. Judge Andrew Napolitano, a superior court judge from New Jersey, noted that Abraham Lincoln, during the US civil war, imprisoned 3,000 journalists for criticising him. Under the draconian laws of the Drug War, the usual constitutional rights that apply to suspects have been suspended. During World War II, citizens of Italian and Japanese descent were arbitrarily imprisoned, merely for what they might do in future to endanger the war effort. It took Ronald Reagan to sign a law overturning Franklin Delano Roosevelt’s tyrannical – and unconstitutional – policy against immigrants.
More recently, the Patriot Act was passed in the wake of 9/11. It clearly violates the 4th Amendment guarantee against unreasonable search and seizure. Napolitano notes that legislators could not possibly have read all 360 pages in the 15 minutes given to them prior to the vote, which means they probably did not know that this law empowers FBI agents to write their own search warrants, without the authority of a judge, or that victims of such a warrant can go to jail for telling anyone about that warrant, even if asked to do so under oath in a court of law.
Given Napolitano’s pessimism about the respect afforded the US Constitution by an overreaching legislature and executive, Boaz’s point is critical. It exists to keep the other arms of government in check.
As Pierre de Vos eloquently argued, the South African Constitution goes even further. Not only do parliamentary laws and executive actions have to pass constitutional muster, but the constitution imposes specific duties upon the government.
One may argue that it should not do so, or one may dispute particular aims of the constitution. For example, when it declares economic goods to be human rights, this means that those who do not have such goods can demand that others be forced to supply them. There’s a word for this: slavery.
However, whatever your quibbles with the content of the constitution, Zuma’s argument that the courts do not have the power to second-guess decisions by an elected executive is, quite simply, wrong.
The courts cannot write law, that is true. This is what parliament is for. It cannot create departments that execute government functions. That is what the executive is for. In these matters, the judiciary is subject to the other independent arms of government. However, both parliament and the executive are in turn subject to the courts in questions of the interpretation of law. Does a law agree or conflict with the constitution? Does an executive decision comply with the law? Those are questions in which the courts are supreme.
In this way, each of the three independent arms of government exist to keep the other two in check. This separation of powers is fundamental if citizens are to be free from arbitrary action by the state. A government is meant to serve the electorate, not dictate to it. It is meant to govern all citizens, and not serve the special interests of a majority at the expense of minorities.
This point seems to sit uncomfortably with Jacob Zuma, and that it does so, should sit very uncomfortably indeed with citizens who believe themselves to be free.
Napolitano ended his talk with a stirring flourish: “On the 14th of July 2011, 2500 lovers of freedom gathered in an air conditioned room in the middle of the desert, to celebrate human freedom. A hundred years from now, 50 years from now, 4 years from now, will there be anything worth celebrating? The answer to that lies in the hearts of every one of you. When liberty dies there, it is gone. When it resides there, no tyrant can take it away.”
In South Africa, it is no different. Let us not permit our elected politicians to become tyrants, believing their power to be supreme and immune to challenge by the judiciary that was established for that exact purpose.
Freedom is not eternal. It is not a state that, once won, remains strong forever. It is not a synonym for political power. On the contrary, freedom requires limits on political power. The price of freedom, as Thomas Jefferson put it, is eternal vigilance. Liberty is fragile. Without attentive nurturing, it will wither and die. DM
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