Lesley Cowling
‘TRANSPARENCY” has never been a legal term, but judges and legal practitioners are learning to follow this precept closely in constructing the new constitutional court.
The Judicial Services Commission, charged with presenting a list of 10 constitutional court nominees to President Nelson Mandela, said this week it would hold public interviews before selecting candidates. It also decided to advertise for nominations in the press and accept them from any organisation or person, instead of confining the selection to legal organisations.
Mandela will choose six of the nominees for the court and another four will come from the judiciary, to make up the 11-member commission along with recently appointed court president Arthur Chaskalson .
The Judicial Services Commission, headed by Chief Justice Michael Corbett, did place some limits on the proceedings. Corbett said guidelines would be drawn up to protect candidates from ”improper questioning” during the interviews, which will take place in September.
The commission also decided not to televise the interviews, as is the practice in the United States. But journalists and members of the public will have the same access that they have to ordinary court proceedings.
Chaskalson has also indicated a willingness to hear representations on the issue of whether or not constitutional court proceedings themselves will be televised.
The question of cameras in courtrooms came up at an informal meeting this week between Chaskalson, media representatives and the legal profession. Chaskalson said the constitutional court would consider an SABC request to televise proceedings. This was something he would not decide alone but in concert with the 11 constitutional court judges once they had been appointed.
Chaskalson noted there was opposition in the profession to courtroom cameras, but suggested the SABC submit a written proposal for the judges to consider.
Those in favour argue that televised proceedings would make the constitutional court more accessible to the public.
Chaskalson’s willingness to consider the request represents a shift in judicial attitudes towards transparency. The meeting itself, called by Chaskalson to discuss what services might be needed in the constitutional court building, signalled a concern that the court be accessible.
This week’s meeting of the judicial services commission also marked the end of a dispute between professional legal associations over who should represent them on the commission. According to the constitution, advocates and attorneys must appoint two commission members from their respective professions.
The General Council of the Bar and the Association of Law Societies (ALS) selected two representatives each. But the National Association of Democratic Lawyers and the Black Lawyers Association (BLA), which represents the interests of black lawyers, said they had not been consulted, and appointed their own representatives.
In terms of a compromise reached, the representatives of the Bar council and the ALS on the commission were nominees from all four organisations. Wim Trengove, chairman of the Bar, and Durban senior counsel Marumo Moerane, the Nadel-BLA choice, represented advocates, while Louis van Zyl, the ALS choice, and BLA president Phineas Mujapilo represented attorneys.