Use Your Rights, Concourt Judge Urges

Article excerpt

A SENIOR judge says civil society is duty-bound to examine proposed government action for any apparent constitutional inconsistency and to take legal action if it seems necessary.

Speaking last week at Wits University, the Constitutional Court's Justice Zak Yacoob roundly criticised the view that primary responsibility for respecting and protecting fundamental rights lay with Parliament and the government, while the people of South Africa were merely "honorary recipients of that respect". Such a view was highly objectionable and even anti-constitutional.

Everyone had an obligation to help ensure that the fundamental values and principles of the constitution became part of South African life. Thus civil society was obliged to "examine proposed government and parliamentary conduct of every kind" to make sure it was not inconsistent with the constitution: "We cannot believe that because we voted for a party (it) will always do right by us. However much a government might dislike that approach it is our duty to remain vigilant," said Justice Yacoob.

"We must not feel guilty when told that we should not criticise the government we elected. We must be strong enough to say that we will do our duty and criticise regardless. And if government does not agree and we feel strongly about it, it is our constitutional duty to challenge the constitutionality of government and parliamentary action."

Justice Yacoob's remarks have a particular significance at this time because of criticism by government officials directed at those who bring legal challenges to state action or legislation.

He also spoke strongly in defence of constitutional supremacy, saying this was the cornerstone of post-apartheid democracy, inaugurated by former president Nelson Mandela on behalf of the ANC. This, too, is significant because the supremacy of the constitution - rather than Parliament - is another fundamental aspect of politics criticised recently by party and government officials.

Justice Yacoob restated a number of basic principles to be drawn from the constitution.

For example, he said the court on which he served was the only body that could decide whether government action was in accordance with the constitution. …