Next week’s Constitutional Court selection won’t provide much scandal, writes Lesley Cowling. But will this compromise its transparency?
TWENTY-FIVE candidates for the Constitutional Court will be interviewed in the Civic’s Tesson Theatre next week, but it is unlikely that the hearings will contain the stuff of drama.
Albie Sachs, director of the Constitutional Studies Centre at the University of the Western Cape, is unlikely to be asked, for example, whether he implied in a newspaper article in April that he would be appointed to the Constitutional Court and, if so, what circumstances or person led him to believe this.
June Sinclair, vice-principal of Wits University, will probably not face questions about why a law firm in which her husband is senior partner was briefed by the university last year, when she was acting vice chancellor, to investigate legal action against students. Or whether the legal costs ran to more than R400 000 and what proportion of these were paid to the firm.
Other candidates will not be asked questions about their personal conduct and behaviour, or their sexual orientation and how that affects their legal attitudes. The Judicial Services Commission — charged by the constitution with nominating 10 Constitutional Court candidates — has resolved to protect nominees from “improper questioning”.
If members of the JSC want to ask this type of question, they would have to refer it — behind closed doors — to the chairman of the JSC, Chief Justice Michael Corbett. He is a man schooled in judicial traditions that require judges to remain aloof from debate and controversy, not “entering the arena” for fear of undermining the dignity of the court.
Guidelines for the Constitutional Court interviews, released by the JSC this week, state: “Allegations against a candidate that affect his or her dignity, or otherwise intrude into the privacy of the candidate, should be referred to the chair. The chair should report all such allegations to the commission in closed session.
“In closed session, the commission should investigate all such allegations that are relevant to one of the selection criteria (for constitutional judges), are serious and are substantiated sufficiently to warrant inquiry.”
The curtain, in other words, will be drawn over any hint of controversy or impropriety.
The JSC’s concerns about “improper questioning” arise not only from South Africa’s tradition of judicial conservatism, but from the Clarence Thomas hearings in the United States, during which allegations of sexual harassment against Thomas, a candidate for the US Supreme Court, were televised live. TV cameras have been outlawed during the JSC hearings.
Most legal commentators agree that the JSC is wise in not following the approach of the Americans, who “take these things to absurd lengths”. But many believe the goal of transparency has been severely compromised in the run-up to the JSC hearings, mostly by a decision to allot just one week to the interviews. They say unless the interviews are rigorous in addressing controversial issues, the JSC may appear to be simply going through the motions.
Said Democratic Party MP Tony Leon: “What they have got to do is convince the public that they’re going to deal with these matters openly and according to proper guidelines, and convince the public that no political deals have been cut.”
The JSC had not moved far enough in the direction of transparency and the hearings seemed to be a symbolic gesture, rather than a firm commitment to openness, Leon added. “Clearly, an hour is not enough to canvass all the necessary issues.”
He said the JSC appeared to be approaching the process very cautiously. The legal profession was inherently conservative and this may have been a factor obstructing the JSC’s transition to a new mode of behaviour, he added.
Martin Brassey, professor of law at Wits University, agreed that the aproach of the JSC had been conservative. He said the questions were likely to focus on the candidates’ intellectual and academic competence, while issues of their personal propriety would not be examined.
“People expect their judges to be persons of moral rectitude and to behave properly,” Brassey said. The questions should, therefore, examine their personal conduct.
Both Brassey and Leon noted that a number of members of the commission were politicians, had party-political affiliations, or were more radical than the other legal professionals. “They’ll just have to ask the right questions,” said Brassey.
Judge Corbett this week cited practical necessities as the major factor in allocating one week for the 25 interviews. He said the JSC members were busy professional people or held important public office, so it was difficult for them to give unlimited time to the process.
“There is also a great need for the work of the JSC in the selection of the candidates to proceed with all reasonable expedition and not to make undue inroads on the public purse,” he said.
In many cases, the public record and writings of the candidates were well known to members of the JSC, he added, so that, “properly utilised, an interview of approximately an hour should be sufficient to make a sound assessment”.
The candidates have not been asked to submit any documentation other than their CVs and there will be “no fixed or predetermined lines of questioning”, said Judge Corbett. “It will be up to the members of the commission and the chairman to ensure that the interview covers the relevant ground to the individual candidate concerned.”
Some lawyers regard this as inadequate preparation for the interviews, lacking the level of commitment necessary to achieve a rigorous, transparent process.
They are disappointed in what they see as the JSC backing down from its initial commitment to a new openness in judicial affairs represented by its decision to interview candidates publicly.
The decision to allow the JSC — which represents legal practitioners and academics, rather than politicians — to have a hand in deciding on the composition of court was made in multiparty negotiations after the DP vigorously opposed an ANC-National Party proposal to give that power to parliament.
The DP, supported by many members of the legal fraternity, argued that this was vital to achieve judicial independence. The ANC countered by saying such a decision would put power in the hands of the old order, which was likely to continue the status quo.
The independence lobby won the debate when it was agreed that the JSC could nominate 10 candidates, six of whom would be selected by the state president to sit on the 11-member court.
This gave the JSC the power to influence just over half the composition of the court, as the other five members have already been chosen by the president. They are Arthur Chaskalson SC, president of the court, and four judges: Mr Justice Richard Goldstone, Mr Justice Ismail Mohamed, Mr Justice Laurie Ackermann and Mr Justice Tholokele Madala.
The JSC was given wide powers by the constitution, which specified only that a successful candidate must have at least 10 years’ experience as an attorney, advocate or law lecturer and pointed to the need for an independent, competent and representative court.
No procedures for the selection process were outlined, but the spirit of the multiparty negotiations and the constitution’s terms implied that the new judicial order should be characterised by an openness and accessibility that was lacking in the old order. Next week’s interviews may be the last chance the JSC will have to prove it has achieved that transition.
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