Human rights lawyer and defence counsel in the Rivonia Trial, George Bizos, has added his voice to the growing chorus of legal protest over the government’s planned judiciary laws. He spoke to Fikile-Ntsikelelo Moya
Why is it important that lawyers of your stature should publicly oppose the planned laws?
The independence of the judiciary is an absolutely vital principle enshrined in the constitutional principles agreed at Codesa. They guided the Constitutional Assembly in writing the Constitution and the Constitutional Court in certifying it. Any amendments to the Constitution that diminish the powers of the judiciary should be opposed by all democrats.
Those who champion the amendments say they aim to transform the judiciary …
They have nothing to do with transformation. This has, to an extent, been achieved by the appointment of judges, magistrates and prosecutors who are black — more than 50% of judges and more than half the magistrates appointed since 1995 are black. Nine of the 11 heads of court are black. These things have been achieved without constitutional amendments. Some judicial reforms, such as doing away with high courts of the former bantustans and the four apartheid-era provinces, have been on the agenda since the Constitution was adopted. There has been an unreasonable delay in the non-contentious matters for which legislation is needed. But significantly, the two former justice ministers, Dullar Omar and Penuell Maduna, produced draft Bills [relating to the provincial courts] without seeking to amend the Constitution.
Why, then, do you think the present minister wants the Constitution amended?
We don’t know why she and her deputy [Johnny de Lange] want this. I don’t want to ascribe wrongful motives on a speculative basis. I know that the deputy minister has strong views about aspects of judges’ work and what happens in courts, over which he believes the minister should exercise control.
They want to appoint a senior civil servant to administer the courts, but it is difficult to distinguish between administrative and judicial functions. If they want to appoint a manager, they can easily do that without amending the Constitution, as long as he or she does not interfere with judicial independence.
You have mentioned three models, American, Australian and Canadian, for the management of courts. Which do you prefer and why?
The closest to our purposes is the Canadian model — with some modifications, it would serve us well. There is no need to amend the Constitution to adopt it. This model would rule out interference by ministers or their appointees in the discretion of the Chief Justice or any of the Judges President.
You quote the former Chief Justice, Ismail Mahomed, as having said the Constitution is a mirror reflecting the national soul. Could you elaborate?
Even if the legislature passes the proposed amendments, there is a danger that the Constitutional Court may declare them unconstitutional because of the doctrine enunciated by Chief Justice Mahomed that certain matters cannot be amended by any majority. An extreme example is that if 100% of MPs say there will no longer be elections, that will not hold because they would be tearing the fabric of the Constitution. Similarly, we say that the independence of judges may not be diminished by mere amendments because it would be inconsistent with democratic principles agreed on at Codesa and passed by 86% of the elected public representatives after the first elections.
What of the role of the Judicial Service Commission (JSC)?
I am surprised that the JSC was not consulted, as the Constitution expects the minister to do so. I would not like to believe the JSC was deliberately ignored; it is for the government to say why this happened. In any event, I believe the Constitution precludes them amending the Constitution before consulting the JSC. That is why we welcome President Thabo Mbeki’s announcement that he is putting brakes on the legislation.
You have suggested that the consultative processes that shaped the political discourse from the 1940s up to the Codesa process will have an influence …
The President, members of Cabinet and MPs come from the well established culture of democratic governance. I don’t believe Parliament will pass the Bills because they, together with the national executive committee of the African National Congress, have not forgotten where we came from.
But the minister sits in that NEC!
I don’t think she has forgotten those principles. Ministers rely on lawyers and others to draw up legislation. I believe that the possible unconstitutionality was not brought to her attention. In fact the president said when the Bills were presented to Cabinet it had not been brought to their attention that the judges were unhappy.