Constitutional Court president Arthur Chaskalson, South Africa’s new Chief Justice, spoke to Mungo Soggot this week
Mail & Guardian: What do you see as your main challenges now that you will be presiding over the entire judicial system as opposed to just the Constitutional Court?
Arthur Chaskalson: I don’t think it’s a question of presiding over the entire judicial system. Each head of court has his or her own responsibilities. Each one is concerned with what happens in their courts. I don’t see myself as having any particular role other than bringing people together and meeting a couple of times a year, as we do now, to discuss issues and to help achieve consensus. I don’t see it as any particular governing role.
M&G: At these gatherings, what are the kinds of things you’d like to see take place? In other words, what do you think the other courts’ main challenges are?
AC: I don’t think there’s really a difference between the Constitutional Court and the other courts. It’s really a question of the scope of what our jurisdiction is and what we’re required to do in the Constitutional Court. The Constitution lies at the heart of them since all law must conform to the Constitution, there’s a huge degree of similarity between the work we do and that which the other courts do.
M&G: On a more practical, technical level, what do you see as the main problems that need resolving?
AC: It’s very important that the courts should function well, that they should be adequately resourced, and that applies both in regard to judges and other personnel, and in regards to infrastructure. And it applies right throughout the system.
I mean, if you go down to some magistrates’ courts, they are in a quite deplorable condition and that needs to be addressed. But I believe there is a commitment and there are very serious efforts being made at the moment to enhance the functioning of the courts and see to it that they are able to do the jobs they are required to do. To do the job, it’s not only the people you not only need the skilled people to carry out the functions of judicial offices, you also need a whole set of support structures.
M&G: Libraries, computers …
AC: All of that, and also I think if you get down to the criminal justice system, there needs to be a cohesion between the police, the prisons, and investigations must be completed promptly. So, there’s a huge logistical problem of our functioning of the courts that needs to be addressed.
M&G: Has the government put enough money into the courts?
AC: It’s difficult for me to answer that. One would have to analyse it quite carefully whether the money has been well spent or not well spent, or whether the problem lies in more money or the more efficient use of money.
M&G: As head of the judicial service commission, are you satisfied at the pace at which transformation has taken place?
AC: Transformation is a process. The judicial service commission at its last meeting had quite a long discussion about the problems of transformation. Because of our history, the pool of candidates who can be appointed to the high courts, from black communities, from among women, is comparatively small, and a lot of that pool has already been used. So, there are practical problems and the commission has decided that it must go into these issues and see whether there are ways of enhancing skills and actually increasing the pool.
My own view is that this is purely a transitional problem. It’s only seven years since the new Constitution came into force a comparatively short time in which people who were previously excluded from the mainstream firms of legal practices, have had opportunities to improve and flourish.
I think there’s a large number of young people who are entering the profession, are in the profession, are doing well and who will go through the profession and reach the stage, comparatively soon, when they will be ready for appointment to the Bench. Of course, they may not wish to go there. They may wish to wait a little longer, for a variety of reasons. It’s a question of the next five, to seven, to 10 years how we move through that and what the profile of the judiciary will look like in five to 10 years’ time.
M&G: Has the judicial service commission had to compromise with the selection of white judges?
AC: Everything depends upon who is willing to make themselves available for selection, and that’s true both within the white community and the black community. But my own sense is that there’s quite a broad-based commitment to the new Constitution within the legal profession, and I think that also within the judiciary, so ultimately it becomes a question of the culture within the courts, how courts approach the issues, how the courts deal with these matters. People entering these institutions absorb the culture of these institutions. I’m really confident about the future.
M&G: Can you express any judgement on the calibre of people who have put themselves forward from the white community. Are you sometimes disappointed at the type of candidates who are coming forward?
AC: There have been occasions on which the judicial service commission has not made appointments when it has felt the persons who have been available have not been of the calibre that they would want to make
the appointment.To that extent there has clearly been some holding back of people who have allowed their names to go forward. Also, I think there are some leading practitioners known to be outstanding, who have not allowed their names to go forward.
M&G: Are you satisfied that the conditions of employment on the Bench are good enough to attract the best practitioners?
AC: The leading practitioners, the people with the biggest practices, earn much more than judges earn or ever could earn. I think that’s probably true in most countries, so it does become important that people should be attracted both by the circumstances in which they work, by what they see as the demands of the work, or what they’re called upon to do, possibly in regard to the status attaching to the job. There may be people who would not want to come to the Bench because they may not feel it has as high a status as it ought to have.
I think there are a whole variety of factors. But, undoubtedly, the day-to-day working conditions are very important. People don’t want to come to the Bench if their day-to-day working conditions are not going to be acceptable and harmonious.
M&G: Do you see improving judges’ working conditions of employment as part of your new role?
AC: Yes, I am sure it is. I am sure that those sorts of issues are matters that need to be taken up and it is obviously something that I will have to be concerned with, but it will not be something I will do on my own.
M&G: Can you go into any detail about the kinds of innovative schemes the judicial service commission is considering to expand the pool of suitable judicial candidates?
AC: I think this is going to be a matter of further discussion. It does involve at one level getting people into situations in which they will learn. Now there are a number of possibilities. There may be special courses to enhance skills. There may be opportunities for people to spend time at the courts, working with judges but not necessarily judging themselves, broadening their experience. There may be ways of identifying very promising people, and seeing that they are encouraged to consider the Bench as a career.
M&G: Does the commission keep a keen eye on the progress of candidates it appoints?
AC: At the moment that is not practical because of a lack of resources. It doesn’t have the resources to do the intensive research that might be necessary to follow those up, but it does discuss the matters with the judges president, and on the whole I think that the sense that is coming back to the commission is that people are settling into their jobs.
M&G: Has the commission had to compromise?
AC: The commission has set itself a standard that it believes that a person has to have a certain threshold ability. If it feels that the person doesn’t have that capability it won’t make the appointment. If the person does cross the threshold, it will make the appointment. I am not prepared to say that we are infallible, but that is the way it [the commission] approaches its job.
M&G: What can be done to increase the number of women on the Bench particularly the Supreme Court of Appeal, which has none?
AC: Again there must be people willing to put their names forward. And there must be people with the necessary skills. I think if you look at the statistics, the proportion of women on the Bench is far lower than the proportion of blacks on the Bench. If you look at the position of women in many other parts of the world, it is similar. It is something that has to be addressed, but it is not a peculiarly South African problem, unlike race. It doesn’t make it less of a problem it’s a different history.
M&G: Are you generally happy with the way in which the judicial service commission has conducted itself in particular with regard to its openness to the public, and the perception that its interviews are sometimes superficial and that the real decisions get made behind closed doors? Do you think there is room to change the way the commission operates?
AC: First of all the decision-making process has to be in private. I don’t know of any major deliberation or decision-making process that is done in public particularly when you are dealing with judges, where you may wish to talk about matters that you would be inhibited about talking in public. You wouldn’t want to harm people in public. I think that part should stay.
I think we do need a greater research capacity at the commission to make closer investigations into the backgrounds of people. We do get information from the professions information from various sources, but it is possibly not in as great a depth as we should have for the purposes of the task that we have to do. So you then have to question people to see how they respond to questions.
You can learn a fair amount about people from quite a short interview. It is quite surprising how much you can learn in about 45 minutes to an hour. But I think there’s room for improvement, in having more information than we presently do have.
M&G: The question was raised last year, but is it not time to unite the Supreme Court of Appeal and the Constitutional Court?
AC: There is no change at the moment. What has happened with the post of Chief Justice has nothing to do with unification. The two courts’ jurisdictions remain the same and will continue to remain the same. I really don’t think it’s an issue any more.
M&G: There could be a perception that the fact that the president of the Constitutional Court is now Chief Justice downgrades the status of the Supreme Court of Appeal?
AC: No, there have always been joint heads of the judiciary. The head of the Supreme Court of Appeal and the head of the Constitutional Court, the joint heads of the judiciary, ranked equal in protocol and related matters, and the public functions of the various officers were divided some with the head of the Constitutional Court and some with the head of the Supreme Court of Appeal. It was suggested that was unsatisfactory and that that there should be just a single head of the judiciary. That has been accepted. The Supreme Court of Appeal accepts it that whoever is the head of the Constitutional Court will perform that role. I think that people accept institutions. I don’t think it’s going to lead to tensions or unhappiness.
M&G: As far as the Constitutional Court is concerned, it seems there is generally not that much disunity, and sometimes there is an impression that there is not that much debate?
AC: I think it is incorrect to say that there is not a lot of debate. There is probably more debate in this court than in most courts because we discuss in great detail every case. We have a number of conferences, we go through a very elaborate process of debate and discussion before we reach a final decision.
There are some courts that you regard as divided courts. I think if you look at the United States Supreme Court it is a divided court, if you look at the Canadian Supreme court, it has at times been a divided court.
I think it is correct to say that our court has seen less of those types of disagreement than some other courts. But if you look through our judgements you will see there have been a significant number of dissenting judgements and there have also been a significant number of concurring judgements at which judges come to a matter from a different position, sometimes disagreeing on a fundamental issue though the outcome is the same.
It has been important for this court to try and reach a consensus, because we are establishing a new jurisprudence, and certainly in the field of a new constitutional law it wouldn’t be much help to have 11 judges each pointing in a different direction.
We work very hard at trying to find areas of agreement and disagreement, and then focusing on the areas of agreement to see whether a result can be achieved. And there are times when we can’t and there are then disagreements. We do work hard to try to achieve agreement and very often the judgments are written quite narrowly to avoid disagreement.