The Judicial Service Commission failed to meet the demands of an open society, argues one of its members, law professor Etienne Mureinik. He proposes a set of laws that would help break the culture of secrecy
OUR interim constitution affirms the goal of openness in government more strongly than does any other respected constitution. Probably the strongest theme of the constitution is the aspiration to an “open and democratic society based on freedom and equality”.
The constitution instructs the courts to interpret the new Bill of Rights so as to promote the values of such a society, and they may not recognise a limitation on any of the Bill’s rights unless it is justifiable in such a society.
What is more, the constitutional principles, which govern the content of the final constitution to be drafted by the Constitutional Assembly this year, instruct the assembly to provide for “freedom of information so that there can be open and accountable administration at all levels of government”.
So openness is a conspicuously strong feature of the interim constitution. It is the feature, possibly more than any other, which makes the constitution a distinctively South African document, rather than a cut-and-paste job on the world’s constitutions.
And for good reason. Open government is desirable not just for its own sake, but because it is an indispensable instrument of accountable and participatory government. And accountability and participation are essential if the government is to be responsive to those whom it governs — if it is to be democratic in a more substantial sense than the austere one which gives citizens a mere right to recall their rulers every five years in a general election.
The aspiration to open governance is being taken seriously by most South Africans. Parliament’s decision to extend public access to its committees, the public selection hearings for members of the SABC board and the Constitutional Court, the rulings of the Cameron Commission, the Independent Broadcasting Authority hearings, all reflect a widely shared resolve to lift the commitment to openness from rhetoric to reality.
But that commitment has to struggle for realisation in an environment still suffused with an authoritarian culture and ingrained habits of secrecy. Decision-makers often find a closed process safer and more comfortable than an open one.
Take, for instance, the Judicial Service Commission, the constitutional body which nominates most of the Constitutional Court judges, and which chooses the supreme court judges.
The commission’s decision to hold public hearings before nominating Constitutional Court judges put it at the frontiers of the international movement towards open governance, and it was a major contribution to attaining the goal of an open democracy.
But the day it finished that selection process, the commission immediately retreated from the commitment upon which the process rested, and decided that the selection of supreme court judges would take place behind closed doors.
There is no good reason why supreme court judges should be chosen in a process fundamentally different from what is considered right for Constitutional Court judges. Like Constitutional Court judges, supreme court judges wield immense power over the nation. Like Constitutional Court judges, their philosophies are never scrutinised in an election.
Like Constitutional Court judges, most supreme court judges have the power to interpret the Bill of Rights, and so to give flesh to the nation’s most important values. The commission has gone so far as to agree that its criteria for selecting Constitutional Court judges should also govern the selection of supreme court judges.
Like those of candidates for the Constitutional Court, the strengths and weaknesses of candidates for the supreme court ought to be open to inspection by the citizenry over whom they will wield power.
The great argument against public hearings is that they deter good candidates from standing. The judicial selection hearings refuted that argument.
The Constitutional Court hearings, which were open to the public, attracted an immensely talented field of candidates, and competition for places on the court was fierce. The supreme court process, which was closed, attracted a conspicuously weaker field (although there were of course some impressive contenders), and competition for some places was embarrassingly mild.
So cogent reasons for retreating from public hearings after the Constitutional Court process are difficult to find. The deepest lesson of that retreat is simply that in a closed culture any advance towards openness scares those who make it, and is always vulnerable to reversal. All our tentative moves towards openness are bound to remain provisional and fragile until we attain a culture of openness.
How do we achieve that? Part of the answer must be to enact carefully crafted laws that translate the rhetoric of transparency into a concrete system of rights, enforced easily and effectively. Such rights would give institutional substance to the national commitment to openness, and put it on a firmer foundation. And the civic habits formed by exercising those rights would wean us of our dependency on closed processes, and educate us away from our instinctive fear of openness.
At least three kinds of laws are necessary. There are developed models of each in countries which have decided that democracy means more than the right to revoke your rulers’ mandate at a general election.
An open meetings law would make it the norm for powerful governmental bodies to meet in public. A freedom of information law would entitle a citizen to demand access to official information in the government’s files. A whistleblower protection law would protect from reprisals an official who revealed government corruption or serious maladministration.
These laws would of course have to be drafted in a way which recognised the government’s legitimate right to keep certain information confidential. The freedom of information law, for instance, would have to exempt from disclosure information the publication of which would jeopardise law enforcement, or personal privacy, or commercial confidentiality, or national security.
Those are exemptions which every freedom of information law recognises. But the test of a good freedom of information law is that it defines those exemptions, and others like them, as narrowly as possible.
Some people fear that open governance laws such as these will prove expensive to administer — too expensive for a nation with such urgent reconstruction priorities as education and housing.
This is a valid concern, but it overlooks critical considerations. One is that careful design can minimise the cost of open governance laws.
A second is that democracy does cost money, but it is usually worth it. Vast sums could immediately be saved by abolishing the 10 parliaments, abandoning the quest for an independent judiciary, and opting for a dictatorship. Fortunately, that is an option no one recommends. If we want a real democracy, we have to be willing to pay for it.
The third is that open governance laws not only cost money, they also save money. Openness means public scrutiny and therefore government accountability; and accountability inhibits corruption, waste and inefficiency. That is something which may well save more resources for the reconstruction and development programme than it diverts from the RDP.
The lesson is that open governance may be more than a luxury which the nation covets. It may be a necessity that we cannot afford to pass up.
Etienne Mureinik is professor of law at Wits University and a member of the Judicial Service Commission and of the Task Group on Open Democracy in Deputy President Thabo Mbeki’s office. These are his personal opinions
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