EDWIN CAMERON: Action needed against lawyers who undermine constitution

We live in a time in our national life that demands courage and resolve from the organised legal profession. This is because our three decade-old democracy, the rule of law and the constitution are under threat. I identify two particular sources of peril.

The first is that we live in a country marked by poverty, dispossession and marginalisation. The World Bank records that SA’s post-1994 progress towards reducing poverty came to a halt in 2011 — just when looting by the Jacob Zuma government elite took hold. About 55% of our people (or more than 30-million) live below the national upper-bound poverty line, while 25% (almost 14-million) experience food poverty.

Our resources are not shared equally. Among countries that render reliable statistics (which many of the main culprits don’t), SA has among the world’s most unequal distribution of wealth and income.

This did not just happen. The law played a pivotal part. For three centuries, the law was an instrument of oppression and subordination and racial privilege. Its role was challenged only by a handful of courageous practitioners, assisted by a minority of brave, principled judges.

Many of the practitioners were from the bar — including Arthur Chaskalson, Ismail Mahomed, George Bizos and Pius Nkonzo Langa.

After three centuries, we tried to turn our backs on this past. Instead, we made a radical promise to each other: that we would cast aside the oppressive and exclusionary grip apartheid’s law applied to embrace a nobler aspiration: to employ the mechanisms of the law, through soaring constitutional protections and values, to build a more just and inclusive country.

The values the constitution articulates, the protections in the Bill of Rights and brave postdemocracy courts have made an unequivocally positive difference to the people’s lives: the Treatment Action Campaign mother-to-child transmission prevention case, Grootboom and other constitutional decisions have changed the lives of the most vulnerable for the better.

Blame ourselves

Despite these substantive democratic gains, we have not sufficiently fulfilled that vision. Far not.

We can justly blame government’s sloth, ineptitude, dysfunction, corruption and systematic looting — but not entirely. Some of the blame lies also with ourselves — with you and me, we lawyers, advocates, judges. We may ask how much each of us has done to try to ensure that the law and the constitution embrace those whom we promised 30 years ago to serve.

And the answer can only be, surely, not enough. A few hours of pro bono work now and then cannot give us a free pass. We lawyers have to do far, far more, both individually and structurally to pursue a legal system that serves everyone.

This includes:

• Resource reallocation — we can all do this, through well-directed wealth-sharing with creditable social initiatives (this needn’t entail giving all one’s worldly assets away, though of course it might).
• Practical involvement in organisations that tackle the social structures that reinforce exclusion and poverty.
• Using the institutions of legal practice to press both government and lawyers themselves to embrace policies and practices that take aim at marginalisation and dispossession.

Without more efforts of this kind we imperil the rule of law and our constitutional structure.

These face a second peril. It is more insidious. It is those who aim to undermine the law and the constitution from within.

Some politicians aim to rubbish the constitution and to discredit the judiciary. Sometimes their criticism at face value (for the reasons above) even has a point. But their objective is not to achieve greater justice for the poor. Rather, they aim to remove the impediments of the law so that well-organised criminal syndicates, which took hold under the Zuma government, can function uninhibited. Their aim is to disable barriers to looting. This overt political agenda is dangerous but it can be identified and countered.

Worst cases

More dangerous are the lawyers, including some advocates, who seek to propel that agenda. Some are skilled liars, dissemblers, manipulators and propagandists. They employ the implements of legal practice to bedevil and confuse and dismay.

Sydney Kentridge said that there was “an honourable way of prosecuting and defending all cases, the best as well as the worst” — the lawyer-enablers embrace the worst cases, and use dishonourable and disingenuous methods to undermine the law itself.

They have even used the Judicial Service Commission to wreck the advancement of conscientious and capable candidates for judicial preferment.

They are a small minority, yet attract disproportionate attention and publicity, often self-generated.

It is no good for us to shake our heads in moral indignation, to express exasperated outrage or indignant condemnation. The courts and the profession must recognise their practical aims and functions, and identify their methods.

What they do diminishes trust in legal institutions, judges and constitutional values — and they do this with the objective of enabling and empowering those who seek to reduce our country and our institutions to a free-for-all zone of criminal syndicalism and looting.

I speak direly, and do not disclaim doing so. Head-shaking and self-consoling indignation are not enough. The assault demands a focused response.

Dictatorial populism

We must first of all recommit ourselves to the struggle for a just legal dispensation that does not benefit only ourselves and a small privileged elite, but advances the interests of those whom our society continues to marginalise. If we don’t succeed in this, we risk cynical mobilisation of the forces of populism against the rule of law.

The struggle is between authentic expansion of social justice and dictatorial populism, often with neo-fascistic overtones.

This is not unique to our country. Nor is the undermining of legal and democratic institutions by those who wish to remove obstacles to uninhibited control.

In the US, a former president, who is a criminally convicted felon, leads the assault on the institutions of the law. He is aided not only by unscrupulous lawyers, but by a calculated legal strategy that seeks to supplant a commitment to more-inclusive justice and fairness with institutions that entrench privilege and minority power.

With variations, and in differing degrees, a cognate struggle is occurring in India, Hungary, Brazil and other countries.

But it is no comfort that this is also happening elsewhere. Our concerns and preoccupations are rightly focused on our own country, with its own grievous history. How do we counter this?

Two major institutions should lead the way. The first are the institutions of the profession itself:

• The General Council of the Bar (GCB), whose best traditions we honour tonight, must shoulder the heavy burden of leading the way in identifying unscrupulous practitioners who debase the law and legal institutions — their lies and dishonest stratagems must be exposed and confronted.
• Alongside the GCB, the Legal Practice Council (LPC) and the Law Society of SA (LSSA) should stand in close solidarity and co-leadership.

In New York state, one of the former US president’s chief lieutenants, a former mayor of New York City, was recently struck off the roll of lawyers for lies and dishonesty. His professional body led the way in holding him to account. I mention this only to emphasise the power, and the responsibility, that professional bodies have.

The second major defender of the rule of law and the constitution is the judiciary. In 2021 I co-authored two articles in De Rebus indicating how the judiciary was pivotal to the defence of the constitution against unscrupulous practitioners who seek to degrade and debase the courts and legal practice.

Judges should be alert that disingenuous arguments, bogus legal interventions and cynical tactics are not merely distracting and exasperating, they are part of an assault on the Judiciary and on the rule of law, in service of a larger programme of destruction for avarice.

The judiciary’s response demands firm resolve, for our legal system and the rule of law are at stake. The national director of public prosecutions has identified deliberate obstruction of criminal processes through the “Stalingrad” tactics as “one of the greatest risks to the rule of law” in our country. Yet judges do have the power to react with principle and with care and with strength:

• They can enforce reasonable limits on diversionary, repetitious and rhetorically devious arguments.
• They can issue costs orders against manifestly frivolous applications or, more pointedly, make orders precluding counsel from recovering any fees.
• And, perhaps most saliently, they can call out duplicity and untruthfulness, not only by depriving guilty practitioners of their fees, but in some cases ordering that they personally pay the costs of the litigation. This was rightly done in the case of an abusive and dishonest former public protector, and can be done again.

We are here to honour the memory of practitioners, members of this association, who fought a greater war, in much more difficult circumstances, against a monstrous system of exclusion and subordination. They did so without either the protections, or the noble vision of justice, that the constitution now affords.

Let us honour the best and most honourable in their tradition. Let us honour their courage. We have much to build on, and much to take pride in, and to protect. We do so by seeking to replicate that courage in the struggle we face today to preserve the law as an instrument of expansive justice.

GroundUp

• Edwin Cameron is a former justice of the Constitutional Court and is head of the Judicial Inspectorate for Correctional Services. He is a member of GroundUp’s board. This is an edited version of a speech delivered Cameron on Saturday on receiving the Sydney and Felicia Kentridge Award.