Canadian Lawyer

16 J U N E 2 0 1 7 w w w . C A N A D I A N L a w y e r m a g . c o m For starters, consider South Africa, a country where the courts struggle to curb abuses by elected officials, par- ticularly those of President Jacob Zuma and his henchmen. The Economist noted last November that "an unex- pected by-product of Mr. Zuma's scan- dal-plagued presidency has been a grow- ing public interest in the justice system . . . " The judiciary, said the news- paper, had acted "as a bulwark for South African democracy at a time when other institutions, including the police and state prosecutors, have been compro- mised." My friend Lourens Ackermann, a leading Cape Town barrister, remarked to me the other day, "The courts of South Africa have been magnificent." But there are dangers in this magnificence. The Economist warned, quite rightly, that activist judges in South Africa — even those acting out of the best possible motives — become increasingly vulner- able to political attack. There are similarities between South Africa and Brazil. Brazil's highest court, the Supreme Federal Court (the Supre- mo Tribunal Federal or STF), has the constitutional power to try members of parliament or government ministers who otherwise have immunity from pros- ecution. In a corruption-ridden country (think Petrobras scandal), prosecuting members of parliament and government ministers have given the STF a promi- nent political role. But, again, there are temptations and risks. The Economist comments, "Justices speak too much in public, often rashly. Live broadcasts of STF sessions amplify large egos." Good on the courts of South Africa and Brazil for doing what they can to keep their governments on the straight and narrow. Bad things would happen if they failed to act. But behaving in this way is not without cost. Activist judges can lose stature and credibility in the eyes of the public. They may come to be seen as just another group of politicians seeking power and privilege. If judges get dragged too far into the political and policy arena, they may become sullied and compromised. Their credibility as impartial arbiters may evaporate. For many years, the Supreme Court of Israel was an example of a top court promoting a separate political agenda. Starting in the 1990s, then president (chief justice) of the court, Aharon Barak, led what he called a "constitu- tional revolution," promoting liberal- ism in a country that, as it happens, was growing more conservative all the time. A New York Times op-ed piece observed, "As liberals lost elections, they increasingly turned to the courts . . . judges became a constant irritant to the conservatives who won elections only to see their agendas constrained s democracy falters, top courts, sometimes reluctantly, sometimes eagerly, take on political and policy roles previously the prerogative of elected offi- cials. Professors of political science sometimes call this process "counter- majoritarianism." (Only academics could dream up such a hideous word.) The dance of the judiciary with other branches of government is com- plex, delicate and varied. Sometimes, judges, in good faith, seek to offset misdeeds by the executive branch. Sometimes, they seek to promote a political agenda that differs from the agenda of the elected govern- ment. Sometimes, in the most egregious instances, they act as the mindless lap dogs of powerful rulers. T O P C O U RT TA L E S O P I N I O N @philipslayton JEANNIE PHAN The SCC's place in the world Top courts in other countries play very different roles than Canada's Supreme Court By Philip Slayton A

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