By Shameela Seedat

When the Constitutional Court was formed in 1994, it was celebrated not only as an important player in the creation of shared values within a deeply polarised society, but also as a key guardian of basic human rights.

While it is likely that courts in any country will sooner or later be drawn into broader social or political disputes, it is of much concern that the Constitutional Court - a symbol of South Africa's new order - is now at the centre of a conflict in which its very credibility is called into question.

What is most disheartening about the dispute with Cape Judge President John Hlophe is the lack of common ground. Supporters of ANC president Jacob Zuma appear to be discrediting the court because of the perception that it will pronounce negatively - and to their minds unfairly - on their leader.

On the other hand, some of those who believe that the judiciary's credibility must be preserved at all costs have implied that the court should not be criticised at all.

Now may be a good time to reflect upon the role and broader context of the judiciary in our society.

One of the main roles of our courts is to offer protection to ordinary citizens whose rights are infringed upon by powerful members of state or corporate institutions. It is crucial, however, to understand how the consequences of court decisions are felt in real-world situations.

Recently, prominent ANC members have suggested that the Constitutional Court is prejudiced against Hlophe and that its actions imply bias against Zuma.

While these and other reported attacks - that the Constitutional Court is "counter-revolutionary" and so on - are ill-founded, it is unhelpful simply to write them off.

In order to maintain public confidence in fair and impartial adjudication
- especially in a country with a fraught past - we need to investigate not only the substance of such attacks, but also the mechanisms by which public opinions of the judiciary arise.

Clearly, the alteration of our legal system in 1994 has not simply turned the courts into incontestable bastions of justice. Belief in the judiciary is influenced by various factors such as the actual practice of the courts, the mechanisms by which judges are appointed and disciplined, and the evidence of transformation, not only in terms of demographic representation, but also as regards sensitivity to the differing circumstances of fellow South Africans.

The system used to appoint judges was changed so it more accurately reflected the country's racial and gender composition. While the legal profession is fairly criticised for being dominated by white males, and while it will take time before black and female graduates penetrate the raft of senior counsel from which judges are generally drawn, it should be noted that out of 11 Constitutional Court judges, seven are black and three are women.

Clearly these judges are not lackeys of the apartheid regime. The more difficult question, however, is whether judges are representative in the sense of being in touch with the realities under which their fellow South Africans live.

In an ideal situation, a country's government and judiciary should be equally concerned with promoting the best interests of citizens. This, however, does not imply that judges cannot be independent of government.

Especially where government is strongly dominated by one political party, it becomes imperative to ensure that they are not lackeys of such a party.

Once a case is brought before a judge, they have to apply the law equally to everyone, including political leaders seen to be in touch with poor South Africans.

More public debate around the courts can be very healthy. The right to criticism should, however, not be confused with the right to interfere with judicial decision-making.

Any criticism of the judiciary should be clearly motivated and not based on insubstantial inferences.

Like all other people, judges have opinions and can make mistakes; absolute neutrality can never be attained. But litigants do have access to safeguards such as the right of appeal and review, and can apply for recusal if there are clear grounds for claiming bias on the judge's part.

The simple belief that a judge will be unsympathetic is not a basis for disqualification.

Judges' personal values are likely to shape their interpretations despite legal training emphasising neutrality.

Yet any interpretation is bound by text, precedent and legal justification. While the Constitution cannot have a fully objective meaning, neither can it ever simply be whatever a judge wishes it to be.

The Constitutional Court has a track record of reasoned, internally consistent and progressive judgments. These have generally been presented in a way that contributes to public understanding, and have expanded democracy by insisting that government meaningfully consult the public on everyday issues.

It was the Constitutional Court that kick-started several programmes for implementing socio-economic rights. Even the unpopularity of specific judgments is a sign of health and of the ability to withstand criticism and maintain public confidence in the long run.

Despite these merits, South Africa's courts are far from perfect, and there are various areas that require further discussion. Should the public, for example, be involved in the appointment process by means of debate and comment?

Should interviews with potential judges be publicly broadcast, so as to reveal the importance of constitutional values within the appointment process?

What kind of training is needed to keep judges up to date and informed on legal developments, social contexts and ethical issues?

Importantly, what is the responsibility of judges themselves in enhancing the accessibility and credibility of courts, or in countering perceptions of themselves as superior and untouchable oracles?

What could be appropriate ways for judges to enter the public arena more than they do currently?

The attempt to completely expunge politics from judicial functioning is a difficult and idealistic task. Substantiated criticisms of our courts should be taken on board fully - but we should be judging our judges on their ability to expand the rights and improve the quality of life of South Africans and not because of expedient political motivations.

The arms deal has already had far-reaching effects on our country's democratic culture, and we carefully need to avoid the muddy waters of political opportunism.

If it is true that the credibility of our highest court has been brought into question as result of current power politics, we need to be rigorous both in assessing its own actions and in ensuring that its independence is protected by all means.

This article was originally published on page 9 of Cape Times on July 23, 2008