This year these awards take place at a crucial moment in the development of our constitutional democracy. Such a democracy can flourish only where there exists a basic, shared normative framework upon which the practice of a constitution can be built. Expressed bluntly, where a community cannot establish the most rudimentary of overlapping consensus as to basic values, there can be no long-term future for a constitutional community. If we, as the citizenry, cannot agree about a core meaning of freedom, equality, dignity, democracy, accountability, transparency and integrity, then our constitution will remain a text with no more significance than a document of historical curiosity. John Rawls Political Liberalism (1993) understood this requirement well: he sought not the creation of firm agreements on a comprehensive conception of the good. Rather, he insisted that without agreement on a core set of principles of justice, liberal democracy was not possible

Davis, Dennis

English

Cape Town University OpenUCT

VOL 125(Part 2)2008NOTESTHE GAP BETWEEN CONSTITUTIONALTEXTAND SOCIALPRACTICE: THE ROLE OF THE PRESS*DENNIS DAVISJudge of the Labour Appeal CourtThis year these awards take place at a crucial moment in the development ofour constitutional democracy. Such a democracy can ﬂourish only wherethere exists a basic, shared normative framework upon which the practice ofa constitution can be built. Expressed bluntly, where a community cannotestablish the most rudimentary of overlapping consensus as to basic values,there can be no long-term future for a constitutional community. If we, asthe citizenry, cannot agree about a core meaning of freedom, equality,dignity, democracy, accountability, transparency and integrity, then ourconstitution will remain a text with no more signiﬁcance than a document ofhistorical curiosity. John Rawls Political Liberalism (1993) understood thisrequirement well: he sought not the creation of ﬁrm agreements on acomprehensive conception of the good. Rather, he insisted that withoutagreement on a core set of principles of justice, liberal democracy was notpossible.To develop even this kind of limited consensus is never easy; how muchmore so in a society that has experienced some three hundred years of racistrule. For this reason the promotion of vibrant public discourse is critical tothe attainment of this form of consensus. And so we arrive at the role of thepress. Although our courts have appeared to eschew press exceptionalism —the idea that the press has a preferred constitutional status — the SupremeCourt of Appeal has stated recently that press freedom is about the rights ofall citizens to a free ﬂow of information, by which I take it that the press is theconduit through which we, the citizens, can exchange views based upon thefree ﬂow of information to all within society. (See Midi Television (Pty) Ltd t/aE-TV v Director of Public Prosecutions (Western Cape) 2007 (5) SA 540 (SCA)para 6.)*Speech delivered at the Legal Journalist Awards on 7 November 2007.213With this backdrop, I wish to concentrate on two related issues: the role ofthe citizenry in the development of public discourse and the consequent roleof the press.Recent controversies in the legal community have indicated that SouthAfricans may not even be able to agree on the meaning and implications offreedom of expression. I make this seemingly provocative point in thecontext of two new responses that have been developed to squeeze the verylife out of freedom of expression:1. We may not criticize decisions of constitutionally established bodies —presumably the courts, Chapter 9 institutions and the prosecutionauthority — apart from the Judicial Service Commission (JSC), ofcourse. By now I hope you have realized the expedience of this claim,for many who say the decisions of the JSC are to be obeyed uncriticallydo not appear to carry that argument to the prosecution service asenshrined in the Constitution, or for that matter to certain judgments!2. Some issues are too divisive, so let us not debate them.As to the ﬁrst response, I accept readily that sitting judges cannot enterinto debates about the nature and validity of decisions taken by the JSC orcourts (save when sitting in court and having to deal with judgments ofother, mainly lower, courts). But this is not a principle that should apply toany other member of society. Jeremy Bentham provided the completeanswer to this attempt at rendering public accountability meaningless whenhe said that the duty of the citizen is ‘to obey punctually and censure freely’.The recent controversy that has so racked the legal community illustratesthat in the view of some, no censure should be allowed. I read recently thatthe output of these institutions must be respected uncritically as they arewhat millions fought and thousands died for. What a trivialization of thestruggle against apartheid! Surely people did not sacriﬁce so much for theconstruction of institutions, but rather for ideas to be implemented by thoseinstitutions; ideas which, if followed, would ensure a narrowing of the gapbetween the aspirations of the constitution and the degrading realitiesencountered by millions of historically (and currently) disadvantaged SouthAfricans.Turning to the question of divisive issues, the very point of freedom ofexpression is to allow for differences of opinion, no matter how passionatelyheld. The Turkish Nobel Prize-winning novelist, Orhan Pamuk, said offreedom of expression that ‘[t]hese freedoms, which modern people long foras much as bread and water, should never be limited by using nationalistsentiment, moral sensitivities or — worst of all — business or militaryinterests’ ((53) 9 The New York Review of Books 25 May 2006, translated byMaureen Freely). I would add expedient populism to that list.Of course, I understand the effect of apartheid upon the legal community.Like so much else in our public and private lives, key legal institutions reﬂectskewed power relationships in favour of a minority, so that in many of theseinstitutions debate followed by a vote may shut out the voices of those whoTHE SOUTH AFRICAN LAW JOURNAL214reﬂect the views of a more permanent majority. But if we presume that wewill invariably hold to perspectives exclusively shaped by race, we cannothave constitutional democracy; for we will never share anything of value.Expression is about a conversation in which I open myself up to the realityof another person into whose world I then enter. I begin to see things fromher perspective. We touch each other’s realities and exit the processdifferently from how we entered it. If we fail to converse then, viewedthrough this prism, no constitutional community is possible.This is not to say that we have an absence of national conversation. Thereare a few wonderful, brave and inspiring public intellectuals (and the list isgrowing) who promote discourse. But within the legal community theremay, ironically, have been a larger group of such people under apartheid. Inthe main, the public has neglected critical public discourse and with it hasmade life more difﬁcult for its conduit — the press. There is a further andeven more disturbing implication concerning the absence of a nationalconversation. It is surely the right of each citizen to participate in the nationaldiscourse. Under apartheid that right was denied to the majority purely ongrounds of race. The democratic constitution was designed to resolve thispart of the national question by guaranteeing to all full, substantive rights ofcitizenship. But if, politically, the question of who is a SouthAfrican remainsunresolved in post-apartheid society, the possible creation of hierarchies ofcitizenship arises, and with it the denial to some of rights to be heard. In allthese ways the citizenry destroys the potential of free expression.But that does not leave the press immune from independent scrutiny. Therole of the press is to promote that conversation, to interrogate its content, toafford opportunity for examination of both the cant and the meaningful.Without this engagement we cannot implement the idea of a constitutionbecause we will fail to attain the consensus, however basic, that is a necessarycondition for the kind of democracy promised in our text. We will disagreeabout measures to promote equality and redress the hurt and damage of thepast, we will dispute the meaning of freedom of expression, disagree aboutthe most basic meaning of corruption, divide viciously about notions ofintegrity and honesty.There must exist independent obligations upon the press to inform,educate and analyze. In my view, the press report card should be marked as‘Pass, but with much room for improvement’. Let me say that law reportagehas improved in quality and quantity and in many instances has acutelyframed the debate around key cases — S v Makwanyane 1995 (3) SA 391(CC), President of the Republic of South Africa v South African Rugby FootballUnion 2000 (1) SA 1 (CC) and Minister of Health v Treatment Action Campaign(No 2) 2002 (5) SA 721 (CC) being instances of this.Regrettably I must add, however, that all too often reportage of key casesis superﬁcial and lacking in any context. I sometimes wonder whether much,if any, use is made of the very clear press statements issued by theConstitutional Court when judgments are handed down. In some instancesthe reports of cases sound like cheerleading for one party. Others claim toNOTES 215provide guidance to the legal strategies employed by counsel or the coreimplications of a judgment, whereas all they succeed in doing is conﬁrmingthe legal ignorance of the reporter. We have no Linda Greenhouse of theNew York Times, who provides consistently superb analytical guidance to layaudiences on the work of the US Supreme Court.Public education about our constitutional system remains very patchy; andpublic awareness is affected thereby. In this connection the role of the publicbroadcaster is in need of intense interrogation. Public discourse about keyissues needs to be promoted in and by the public broadcaster, although therest of the media are not immune from obligation. Certainly, the owners ofthe press have some duty to ensure that journalists possess the resources torespond to these challenges, and editors owe it to the public discourse topromote informed debates about key cases and legal developments.Let me cite two illustrations of failure by the press in its coverage beyondthe reporting of recent cases. First, the Constitution is blamed for increasingcrime as if it is the Constitution that promotes the kind of violence which,like a cancer, threatens the body of our society. Secondly, debates about thetransformation of our legal system (on the rare occasion that any publicationappears) tend to focus exclusively on demographic representation of theprofession or the infusion of vernacular law into the legal mainstream. Theseare issues of major importance and I, for one, consider them to be ofsigniﬁcance to the future of our legal system. But they are not merejurisprudential war-cries: they are elements of a key debate about what legalsystem is possible in South Africa, given our history and our place in Africaand the global world. To call for vernacular law to have a greater role in theoverall legal system is too important a topic to be left to populist platitudes.Even more so, the national debate must be about how law in this country canhelp produce a society based on ubuntu; how it can promote the dignity ofevery member of that community and supply him or her with the substantiveelements necessary to exercise citizenship meaningfully.In the setting and promotion of all of this conversation, the press must playa cardinal role.THE SOUTH AFRICAN LAW JOURNAL216

The Gap Between Constitutional Text and Social Practice: The Role of the Press

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The Gap Between Constitutional Text and Social Practice: The Role of the Press

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