Openness appears to be anathema to those in the process of appointing our Constitutional Court judges, writes Dennis Davis
ALL things considered, the shortlist of 25 lawyers made public by the Judicial Services Commission last week is impressive. In preparing its list of Constitutional Court nominees (after each is interviewed, the JSC will choose 10, from whom President Nelson Mandela will appoint six) the commission probably left out one or two deserving cases, but ensured that a couple of conservative hacks who now claim to be human rights lawyers were also excluded.
In this the JSC has done better than those who have made other governmental appointments. Unfortunately, the public will never be able to judge its decision because the list of 100 nominees which the JSC cut down to 25 was not made public, nor was the shorter list from which the 25 were eventually chosen.
The JSC has appeared exceptionally reluctant to make its contribution to the promotion of the fundamental value which underlies the entire constitution: namely, the promotion of an open and democratic society based on freedom and equality. Openness appears to be anathema to the way in which it has gone about its business.
Firstly, it appeared extremely reluctant to hold hearings. Secondly, it excluded radio and TV coverage — and now it appears that the candidates will be interviewed for no more than an hour. Given that there are 17 members of the JSC, this means that each candidate will probably be asked no more than one question per member.
If this is true, it is a disgrace. It is rare today to find an employer who spends less than an hour interviewing a prospective candidate for an administrative position. One can safely assume that secretaries are not required to answer questions about their views on abortion, capital punishment, original intent or the scope of judicial review. The question arises therefore as to whether the JSC is serious about holding public hearings and what purpose these public hearings will serve in helping the JSC arrive at its final decision.
Anyone with the foggiest notion of constitutional law must realise how important the Constitutional Court will be in shaping the political fabric of this country. Questions relating to abortion, the death penalty, our tax system, the proposed land reform programme and the entire criminal justice system will land up before this court.
It is precisely because a Constitutional Court must decide these important questions that there has been so much controversy about the appointment of United States Supreme Court judges. These judges — as will our Constitutional Court judges — have the power to dilute and set aside programmes which have been agreed to by a democratically elected parliament and to impose substantive obligations upon the government. That is why there was such a furore in the US about the nominations of Judges Robert Bork and Clarence Thomas.
One can be sure that some of the candidates will welcome the opportunity to answer questions about issues which have been reported in the press. Doubtless Dr Antonie Gildenhuys wishes to explain that his alleged membership of the Broederbond will not affect his independence, while Professor Albie Sachs, who has been subjected to a substantial amount of criticism, often from unnamed sources, would like the opportunity to clarify his own theory of constitutional law and to what extent the court should hold an ANC-dominated government to the substantive promises of the constitution.
But as the interviews will probably barely allow enough time to have a cup of tea and to shake the chief justice’s hand, and as they will not be covered on radio or TV, rumours of political preference will not be quashed.
The constitution requires that the JSC have regard to the needs of independence, competence and representivity in respect of race and gender when making its recommendations. Yet in this new era of openness the public is unaware as to how the JSC has interpreted this requirement. Indeed, one wonders whether the JSC has formulated any clear criteria. If it has, when can we expect publication thereof?
By failing to uphold the spirit of the constitution to promote open government, the JSC has passed up a wonderful opportunity to educate the public as to the implications and ramifications of this new constitutional state which was born earlier this year. Thanks to its secretive mode of operation, the whole process has appeared to pass the nation by.
There is incredible ignorance about the process. One experienced editor criticised the reluctance of Judge Arthur Chaskalson to be interviewed. The point is that the constitution did not require Mandela to interview Chaskalson before appointing him as president of the Constitutional Court, nor did the constitution provide for interviews for the four judges already appointed.
Of course it should have. Then we could have heard how Judge Richard Goldstone would have answered the criticism that he will probably be absent for a number of years from the Constitutional Court. (How many years he will be away is uncertain, as Rwanda now appears to have been included in his War Crimes Brief.) But neither he nor Chaskalson can be blamed for what was a constitutional compromise created to satisfy the eccentric needs of ex- justice minister Kobie Coetsee.
The JSC is not alone in keeping the public in the dark. Oddly, the press, seemingly obsessed with whether its freedom is being undermined, has paid scant attention to the one institution which has the capacity to protect and safeguard its right of freedom of expression in the future. Hopefully, the press will now wake up and report extensively on the hearings and human rights organisations will vigorously monitor the process.
The Centre for Applied Legal Studies intends appointing a person to monitor each day of the hearings, and disseminating the record as widely as possible. If the JSC is prepared to pay only lip service to an open and democratic society, then it is up to other bodies to ensure that the process of appointment is treated with the importance which befits the critical role which the Constitutional Court should play.
* Dennis Davis is director of the Centre for Applied Legal Studies at Wits University