Justice Minister Brigitte Mabandla is moving to defuse tension between her department and senior judges, as new legislative proposals on the administration of courts lend momentum to the controversy over political interference in the functioning of the courts.
But she has declined to rule out the possibility of constitutional changes if they are seen as necessary to facilitate the passage of new laws governing the judiciary.
Mabandla told the Mail & Guardian, through her spokesperson, Kaizer Kganyago, that she was committed to bilateral meetings with judicial bodies to resolve disagreements over proposed laws dealing with the education of judges, the administration of courts and the accountability of judicial officers.
”If there is constitutional change, it will not undermine the independence of the judiciary,” Kganyago said.
But one legal commentator, who asked not be named, said there would be a constitutional crisis if Mabandla persisted in forcing through ”unilateral” changes in judges’ working conditions, and if she insisted on a constitutional amendment placing her at the top of the administrative structure of courts.
”Judges will challenge this legislation if it remains in its current form, and other judges will then be forced to adjudicate on matters that directly affect them — it will provoke a serious crisis.”
Years of painstaking negotiations between judges and the government behind closed doors have culminated in an increasingly public stand-off, with differences clearly in evidence at a colloquium held last week to discuss the proposed legislation.
In an atmosphere already charged with uncertainty over the debate about transformation, and the January 8 statement of the African National Congress, which warned that judges risked the anger of the masses if they failed to alter their ”collective mindset”, it is now clear that an intense political contest is under way.
Kganyago insists, however, that the debate has been misrepresented in the media, and that there is ”no battle” over the three Bills.
”We presented legislation and there was generally agreement to take the matter forward. People are looking at particular clauses and brandishing them around, instead of the aims of the legislation. There will always be minor differences, and where there are differences we will find ways to resolve them.”
Mabandla had gone out of her way to try to achieve consensus before the three Bills are presented to Parliament, he said, because she wanted to consult as widely as possible.
”It is the responsibility of the executive and Parliament to make legislation, not judges — we are not required to consult in advance, but the minister went out of her way. She even withdrew the Superior Courts Bill from Parliament for more consultation.”
”Is the judiciary under threat? No. Some tension is natural and the current process is good for democracy,” he added.
Three proposed laws lie at the heart of the controversy:
l The Superior Courts Bill, which aims to rationalise the structure of the courts, doing away with homeland divisions and ensuring that there is a high court in every province;
l The Justice College Bill, which provides for the restructuring of the institution that conducts continuing education for judges, prosecutors, and departmental officials; and
l The ”complaints mechanism”, which sets out a procedure for dealing with complaints against judges.
There appears to be general agreement on these broad aims, but the details are contested, with some judges — including outgoing Chief Justice Arthur Chaskalson and his successor, Pius Langa, concerned that elements of the legislation breach the separation of powers — or at least erode it.
In the case of the Superior Courts Bill, there is disagreement over the degree of ministerial involvement in the administration of courts, the apparent concentration of power in the hands of the chief justice, and the rigidity of rules designed to ensure that judges stick to a much tighter work regimen.
The Justice College Bill gives the minister discretion over academic appointments at the Justice College, a move which some judges believe will result in an education programme with a pronounced slant toward the executive. And the Department of Justice still wants to appoint non-judges to the disciplinary tribunals that will investigate complaints.
The extent to which these tribunals are subject to influence from outside the judiciary has, for sometime, been the subject of disagreement between the Judicial Service Commission, led by Chief Justice Chaskalson, and the government.
Finally, and most contentiously, a suggestion that changes be made to Section 165 of the Constitution, which guarantees the independence of the judiciary and ensures that ”no person or organ of the state may interfere with the functioning of the courts”, is more or less universally rejected by judges.
Democratic Alliance justice spokesperson Sheila Camerer, who was present at the colloquium, told journalists on Wednesday that judges had spoken ”passionately” about Section 165, and the proposed legislation.
Two judges with broadly divergent political backgrounds also said the judiciary was united in its opposition to those parts of the legislation which appear to strike at the separation of powers. It seems clear that the draft texts represent the position from which the Justice Ministry intends to negotiate, rather than what it ultimately expects to achieve.
”We’ve put our cards on the table, now we can debate it,” one official said. The legislation is expected to be tabled in Parliament by July, followed by a period of public hearings.