The price of justice is liberty in our life time
By Dr. Munyonzwe Hamalengwa
The initial identification, selection and appointment after ratification of a Justice to the Constitutional Court or Supreme Court is the prerogative of the President. The President gets advice from a select number of people before picking a Justice. The person who is picked is usually “agreeable” to the President.
Thus when Republican President Dwight Eisenhower picked Earl Warren, a former conservative governor of California as Chief Justice of the United States in 1953, he thought he was picking a fellow conservative who churn turn out conservative decisions in the Supreme Court of the United States. Hardly had Eisenhower appointed Warren than he realized that some judges take their oath of office very seriously and that their new true Master after appointment is the Constitution and the Rule of Law. Shortly after appointment Warren shepherded a unanimous Supreme Court of the United States decision that overturned centuries-old slew of discriminatory laws against African Americans in education, the “separate but equal doctrine” or “Jim Crow” laws as they were known. Eisenhower was reportedly very unhappy with Warren and complained bitterly that appointing Warren was the greatest mistake he had ever made in his life. For American people, Warren was one of the greatest gifts that a President had bestowed on them.
Warren went on to superintend over the greatest civil rights revolution in legal rulings in favour of African-Americans and criminal defendants from 1953 to 1969 that has not been equaled since before and after his appointment. Warren refused to pander to political pressure from the president and the conservative establishment. Once appointed and had security of tenure and could not be recalled unless for good cause but not for his fidelity to the constitution or for doing his job, Warren no longer felt beholden to the President who appointed him.
During this same time, there was a Justice on the Supreme Court of the United States (SCOTUS) named Hugo Black whose identification as having been a member of the racist Ku Klux Klan (KKK) was only discovered after his appointment to the SCOTUS. Black surprised the nation by shedding and shredding his racism and conservatism and becoming one of the greatest liberal judges in American history. Judges don’t need to be imprisoned by their historical predilections or their appointing masters. They have a greater master to be beholden to, the constitution and the people of their country.
Even the current Chief Justice of the SCOTUS, John Roberts, appointed by George W. Bush, has disappointed the conservative establishment in the US. He was supposed to toe the conservative line throughout. He is reported to be one of the most conservative justices in US history. But he has risen to the occasion when it really mattered. He has upheld Obamacare when conservatives expected him to overturn that seminal legislation that empowered ordinary Americans to subscribe to affordable healthcare insurance. If Obamacare was overthrown, millions of poor Americans who are mostly African-Americans, would lose their insurance coverage and therefore increase their vulnerability to sickness and early death.
Thus Judges after appointment can rise above the fray and justifiably “betray” their appointing masters in favour of the constitution and the greater good of society. Judges can be free from the narrow ideological and political prisons that the appointing authorities expected them to be trapped in. Judges have nothing to lose but their chains by being totally partial to the plain words of the constitution and its liberal and purposive interpretative frameworks, by supporting the enhancement of democracy and good governance. Each constitution of the democratic world is geared towards the enhancement of democracy and good governance and the rule of law and not rule of men or women whose foundation is usually whimsical, fragile and temporary.
The SCOTUS is not the only court that has been populated by Justices who “betrayed” the expectations of their appointing masters. When Brian Dickson of Canada was appointed to the Supreme Court of Canada, he had been elevated from the corporate world. Corporate lawyers have a reputation of being conservative and not expected to make revolutionary waves on the bench. They are not expected to be sympathetic to the plight of the common person. They are expected to be pro-business. They are not expected to make liberal rulings.
Justice Dickson shocked Canada once he was appointed Chief Justice of Canada. He went on to lay the liberal foundation based on the new Canadian Charter of Rights and Freedoms of 1982 and his concept of “purposive interpretation of the Constitution” is the shot that is heard around the world when it comes to progressive interpretation of the Constitution. A judge has to honestly ask the question, “what is the purpose of this section of the law or constitution when the legislature made it?”. Was it meant to enslave the people of the country? Was it meant to scuttle the democratic principles upon which the country is supposed to be constructed? Is the constitution meant to serve the narrow ideological or economic interests of the elite? The result is very clear once you use the “purposive interpretation of the constitution” or law schematic. As Muhammad Ali once said when he beat Sonny Liston in 1964, he “shook up the world”. Purposive interpretation cannot fail but shake up the world. Of course legally shaking up the world is not equivalent to revolution. Law is not revolutionary. Though it can be made to.
Closer home, when President Zuma of South Africa appointed Mogoeng Mogoeng as Chief Justice of South Africa, the public and indisputable feeling was that he had appointed a sycophant, a political hack who will be beholden to his coat tails until doomsday. The experience has been otherwise. Mogoeng Mogoeng has gone on to make the most devastating rulings against his appointing master than any Chief Justice so far in South Africa. Once appointed, judges can free themselves from any prior trappings and expectations and can begin to obey the dictates of the oath of their new office which is to uphold the constitution without fear or favour and must shun any outside influence no matter where it is coming from. Even the presidents who appoint these judges exhort them to be guided by the law. Can human beings do this? Yes, Earl Warren did it, Hugo Black did it, John Roberts is doing it, Brian Dickson did it and Mogoeng Mogoeng has done it, as many other judges, sung or unsung heroes have done it and are doing it everyday including our Constitutional Court judges in our beloved Zambia.
Dr. Munyonzwe Hamalengwa is Senior Lecturer at the School of Law, Zambian Open University. His forthcoming book is entitled, The Book on Judges. He us the author of the book, The Politics of Judicial Diversity and Transformation(2012).