Why protestors have no place near Courts.

In South Africa the sight of chanting protestors standing outside Courts of law brandishing banners is all too common. This is not necessarily unique to this country. Many will recall the Michael Jackson trial in the United States, where one group called for the star’s conviction on charges of child molestation whilst another group, consisting mainly of his fans, pronounced him to be innocent.

Armed with a curious assortment of prejudices or misguided loyalties, not to mention a generous helping of propaganda and media driven sensation, most such protestors then proceed to shout as loudly as possible in the presumed hope that the Judge will be so impressed by their commotion and by the sheer numbers involved, he might be persuaded to rule in their favour irrespective of what is said in Court by the litigants and their qualified legal representatives.

In a democratic society, the public are of course entitled to air their views by virtue of the right to freedom of expression, the right to assemble and the right to protest. In most democracies, these rights are enshrined in a constitutionally protected Bill of Rights.

The above rights, are, however, not absolute. It is generally accepted that one has to exercise most of one’s rights in a common sense manner which is also respectful of the constitutional rights of other citizens. This is easily demonstrated by reference to a popular example. The right of freedom of expression, for example, does not entitle one to shout “fire” in a cinema. Doing so might well lead to panic and even to a stampede in which people could possibly be killed.

I would argue, that the right to any freedom of expression in a cinema should be very limited indeed. Cinema patrons pay to watch a movie and hear its soundtrack. If someone started making a political speech in a cinema, for example, he should legitimately expect to be removed by security. Arguably the only party who enjoys an almost unrestricted right of freedom of expression in a cinema, once the featured movie has started, is the director of the movie.

I would even go so far as to contend that if any cinema patrons object to anything in the movie, they do not even have the right to boo, since this would violate the rights of other patrons to enjoy the movie they have paid to see. Instead, the disgruntled have the right to walk out quietly. To those who would argue that this limits anyone’s right to freedom of expression, I would simply say that a walk-out is a very powerful means of freedom of expression. It is often used by minority parties in democratic assemblies or parliaments.

The point I am making is that one’s right to freedom of expression, or free speech as it is more commonly known, is not absolute. Nor, does this right always entail the absolute right to be heard. There are countless situations where those who aren’t participating in a protest should be afforded the democratic right not to hear the views of those who are involved. There are those who seem to think that simply because they have something to say, this always entitles them to compel others to listen. The right of free expression takes many forms and I would submit that certain situations call for the use of banners, the internet, or letters to the press, instead of vocal expression e.g. a protest at a hospital.

That said, protestors should always be entitled to assemble and to express their views in front of any building occupied by elected officials. Politicians and other elected officials are answerable to those who elected them and part of being answerable involves putting up with various forms of demonstration, including loud vocal protests.

When it comes, to Court buildings however, I contend that a protestor-free exclusion zone, should exist around every Court. No-one should be permitted to protest or to display banners within such zone.

At the heart of any democracy lies the concept of the division of the legislative, the executive and the judicial powers.  It is generally accepted that the judiciary should be completely independent. The people have the power to elect the lawmakers (the legislative) and to choose those who govern them (the executive). But once a given law or a matter falls to be judged, the people and the other arms of government must give way to the independence of the judiciary and to the rule of law.

The idea that judges should be compelled to listen to loud, and sometimes ignorant voices of a mob gathered outside the court is an anathema to any system of justice.  One can have mob rule or one can have courts of law based upon reason and the rule of law. It is not possible to have both.

Heaven forbid that the innocence or guilt of a person should ever be determined by a chanting mob, or by a head-count to ascertain which of two competing mobs gathered on any given day happens to be the largest, rather than by the methodical, reasoned consideration of evidence and of legal argument. It is only through the latter process that the certainty, the dependability and ultimately the justice to which legal systems aspire can be achieved.

Of course, in some traditional cultures, the views of some or all of the senior adults in the community play a central role in what one might refer to as a community based system of justice. Usually these adults, often only males, are all entitled to have their say in the case, and the elders and/or the chief thereafter proceed to make a decision.  In adopting our modern constitution, we in South Africa effectively excluded any such system of justice in favour of one based on the rule of law. This is the case in most modern democracies.

I would imagine, however, that even in these traditional community courts, the hearings would surely also have been conducted in a quiet, respectful and dignified manner, and probably not in front of chanting mobs.

The Anglo American system of community involvement in the form of juries who preside in some criminal cases is another form of limited community involvement in the justice system. Once again, however, jury trials follow strict procedures which do not include any role for loud mobs.

It is critical not only that Courts of law must in fact function independently, as they are duty bound to do, but justice also demands that Courts must be seen to be independent.  For this reason there cannot be any place for chanting protestors and their banners anywhere nearby. The proposed exclusion zones would not only serve as a mark of respect for the independence of the Judges and our Courts of law, but they would also serve as overt affirmation that Courts are places of reason, argument, evidence, contemplation, law and justice, in which mob rule has no place.

Those who argue that, in a democracy, the views of protestors have a place in the judicial process do so in ignorance of the fact that, in most cases, a silent majority of citizens, for whatever reason, usually do not deem it necessary to apprise themselves of the facts of the case prior to turning up at Court to express their views. How can a Judge possibly attach any weight to the views of protestors who do turn up at Court without knowing how many of the ‘absentee citizenry’ hold contrary views and without knowing how many are neutral. Clearly, any attempt to do so would be an exercise in guesswork and it would render any judgment rendered pursuant to such thumb sucking to be appealable. For this reason, it cannot be denied that protests in front of a court do not serve any useful purpose whatsoever.

I recall that an exclusion zone was declared around the Court in the OJ Simpson criminal trial in California. No-one was permitted to protest or to display banners or posters within that zone.

An OJ fan attempted to get around this by opening a stand within the zone in which she dispensed free orange juice to onlookers. The stand bore a sign which read:

            “FREE  OJ!”

Despite the ingenuity of this endeavour, for which the lady deserves full credit, the police quite correctly shut her stand down.

 Justice cannot be determined by having regard to the force of numbers or by having regard to those who shout the loudest. The rule of law must prevail. Accordingly, all Courts ought to operate at a suitable distance from those who would seek to influence or intimidate juries or Judges as they carry out their duties.

The proposed exclusion zone is not only practical, in that it prevents loud vocal protests from disturbing the proceedings or from being heard by the Judges or juries, but its existence would also add symbolic emphasis to the independence and the dignity of the Court.

Protests could still continue immediately outside the zone, thereby ensuring that the protestors’ rights of assembly and freedom of expression would not be infringed. If the protestors have a good point to make, the validity of that point will not decline simply because they have to make it, say eight hundred meters further away from the Court instead of in front of the doors of the Court. And if the protest is newsworthy, the lack of proximity to the Court won’t prevent the media from covering it.

Quite apart from the fact that protests in front of a court can never serve any legitimate purpose, it should also be borne in mind that, all too often, the forcefully expressed views of the protestors concerned are seldom, if ever, preceded by any investigations or by any fact finding exercises on their part. Those who are blessed with the time to participate usually succeed only in demonstrating how little independent insight they possess in regard to the real issues involved.  

The people who stood outside that California Court arguing that Michael Jackson was innocent were surely not witnesses to the alleged crimes, nor did they have the opportunity to interview any relevant witnesses or to examine any documents or exhibits.

In Cape Town, I have watched as DA and ANC supporters have been bussed by their respective party leaderships in order to participate in loud protests in front of the High Court.  In some cases, I have had reason to suspect that many of these protestors have been lured by promises of food instead of any deeply held conviction regarding the given issue of the day.

In a world where respect for the law and for the rights of others is on the regrettable decline, the proposed exclusion zone would serve to emphasize the rule of law, the independence of the judiciary, and the dignity of the Court.