Who will guard the guards?

Quis custodiet ipsos custodes? is a Latin phrase from the Roman poet Juvenal, often translated as “Who will guard the guards?”

The problem was posed by Plato in the Republic, his work on government and morality. The question is put to Socrates, “Who will guard the guardians?” or, “Who will protect us against the protectors?”. The saying has since been used by many people to ponder the insoluble question of where ultimate power should reside. The way in which modern democracies attempt to solve this problem is in the separation of powers. The idea is to never give ultimate power to any one group; the executive, legislative, or judicial; have the interests of each compete and conflict. Each group will then find it in its best interest to impede the functioning of the rest and this will keep ultimate power under constant struggle and out of any one group’s hands.

The answer lies in the current debacle surrounding Cape Judge President John Hlophe in the wake of an unprecedented complaint by the Constitutional Court that he attempted to influence its members. On Friday, the Constitutional Court revealed that “Judge John Hlophe has approached some of the judges of the Constitutional Court in an improper attempt to influence this court’s pending judgment in one or more cases”.

The Cape Bar Council yesterday called for Hlophe to be removed from the bench until the complaint had been investigated. The chairman, Rudi van Rooyen, said: “In order to safeguard public confidence in the independence and impartiality of the judiciary, the council requested the JSC to facilitate Judge Hlophe’s absence from office pending the final determination of the complaint. Given the seriousness of the complaint by the Constitutional Court judges against him, the Cape Bar Council considers that it would be untenable for him to continue in office pending the determination of the complaint by the commission.”

And so the saga continues, every newspaper, talk radio and many of the political blogs in the country, are calling for his suspension and a full investigation. The ANC and its president, Jacob Zuma, have tried to distance themselves from allegations that Hlophe abused his judicial office in an attempt to bolster Zuma’s case in court. ANC spokeswoman Jessie Duarte yesterday denied that there was a relationship between Zuma and Hlophe, except in so far as Zuma was a litigant. She said the ANC had no influence over the functions and decisions of the Judicial Services Commission.

Tony Leon of the DA said: “The revelations concerning Judge President John Hlophe suggest … that one of our most senior judges is a sort of constitutional fifth columnist who is white-anting the twin and imperative notions of judicial independence and the separation of powers.” I have absolutely no idea what that means but it sounds really impressive!

The bottom line… With the imminent demise of the scorpions, the breakdown in the rule of law, politicians attempting to influence judges and now judges trying to influence the supreme court, we sit on a precipice and wait, eyes shut, white knuckled and terrified and wonder what is to become of the justice system we are so proud of (well most of the time, ok some of the time, ok occasionally!)

So I ask… “Quis custodiet ipsos custodes?”