Addendum: Free Speech, the Armed Forces, and Albie Sachs

As an addendum to the previous post on the free speech rights of government employees, consider the following brief concurrence, penned by Justice Albie Sachs of the Constitutional Court of South Africa, hearing a case about the rights of soldiers to unionise:

“… a blindly obedient soldier represents a greater threat to the constitutional order and the peace of the realm, than one who regards him or herself as a citizen in uniform, sensitive to his or her responsibilities and rights under the Constitution. The Constitution proclaims that national security is not simply directed towards the maintenance of power but must reflect the resolve of South Africans, as individuals and as a nation, to live as equals, to live in peace and harmony, to be free from fear and want and to seek a better life. [Section 198(a)]. It goes on to require that [t]he security services must act, and must teach and require their members to act, in accordance with the Constitution and the law . . . [Section 199(5)]. It provides expressly that no member of any security service may obey a manifestly illegal order [Section 199(6)] and declares that the primary object of the defence force is to defend and protect the Republic, its territorial integrity and its people . . . in accordance with the Constitution . . . [Section 200(2)]. These provisions clearly contemplate conscientious soldiers of the Constitution who can be expected to fulfil their constitutional duties more effectively if the values of the Constitution extend in appropriate manner to them and infuse their lives in the armed forces.

Secondly, I agree that, important though a communal esprit de corps may be for the armed forces, the mystique that any military force requires cannot take away the need for soldiers to be able to speak in their own distinctive voices on mundane but meaningful questions of service. In my view, however, the freedom of association that ‘everyone’ has [Section 18], and the right to fair labour practices that ‘everyone’ has [Section 23(1)], clearly entitle soldiers to set up a body such as SANDU to look after their employment interests. I therefore do not consider it necessary to go as far as O’Regan J has done in examining the complex question of whether soldiers qualify as ‘workers’ entitled to the panoply of workers’ and trade union rights set out in Section 23 (2), (4) and (5). Nor do I find it necessary to consider whether defining soldiers as workers entitled to form trade unions, and then denying them the right to strike, to organise in the full sense of the term, to engage in meaningful collective bargaining, or to join trade union federations, might only, in the words of Jackson J, result in ‘. . . a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper’s will.’

One can always hope.

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