The president has reiterated government's support for the NDP.
The National Development Plan (NDP) makes proposals on the Judicial Service Commission (JSC) that I have taken up in Parliament, in a Private Member's Bill soon to be gazetted.
The president has reiterated government's support for the NDP. Not only is the plan Cabinet policy, it also enjoys the support of the official opposition.
It may, therefore, be said that we have the consensus that is not only desirable for constitutional change but also necessary for the two-thirds vote without which it cannot occur.
The NDP proposes "reforms including the composition of the JSC itself, which is argued to be too large to function effectively, and to be hamstrung by political interests".
So it is: my colleague Hendrik Schmidt, who represents the opposition on the JSC, remarked during the days when the JSC used to sit at the Twelve Apostles Hotel in Cape Town that the venue was all too appropriate. Add up the four commissioners elected by the National Council of Provinces, the three ruling-party National Assembly members, three opposition members, four presidential nominees and the justice minister and you have 12 ANC apostles out of a total of 23 (or 25 when sitting with regard to specific high courts, along with provincial premiers and judges president).
To downsize the JSC and to deal with the preponderance of politicians, as the NDP proposes, I have simply reduced by half the numbers of those directly elected by Parliament and, in the case of the four presidential appointees, also limited their participation to the selection of judges where the president does not have discretion.
The president chooses Constitutional Court judges from a list of nominees prepared by the JSC. This list must include three names more than the number of places to be filled. He also appoints the chief justice, deputy chief justice, president and deputy president of the Supreme Court of Appeal, after some consultation. The four presidential representatives are superfluous, and should retain a role only in the selection of high court judges and in advising government on the administration of justice.
The NDP's other proposals on the JSC include the need to address a lack of impartiality in its selection process and the establishment of clear criteria for the appointment of judges. The first is easily addressed by including in the Constitution a section requiring equal assessment of candidates.
Appropriate qualification
The second is best dealt with by including in the Constitution itself an elaboration of the meaning of the "appropriate qualification" required. It should mean a demonstrable ability to perform the judicial function.
It is not satisfactory to say that the JSC should "elaborate further guiding principles to build consensus on the qualities and attributes of the 'ideal South African judge'", and that "the criteria should include a progressive philosophy and an understanding of the socioeconomic context in which the law is interpreted and enforced".
Perhaps the NDP has been influenced by debate in other jurisdictions, where judges are drawn from the Bar, which in turn tends to draw from established elites, and where pressure is being exerted for greater representivity and transparent appointment procedures.
South Africa's problem is just the opposite. The arguments of a former chief justice of Australia, Sir Anthony Mason, are apt: "Without a clear understanding of the judicial function it is idle to list all the desirable qualities that one might hope to find in a perfect human being and then assert that they are the qualities we expect of a judge. The judicial function takes a variety of forms, each of which calls for particular qualities." It is in the high courts that community values come into play – that is what the NDP probably means when it speaks of the socioeconomic context.
And it is in the high courts, more than in any other courts, that our judiciary needs to be broadly representative of our society if it is to continue enjoying public confidence.
It is in the Supreme Court of Appeal and the Constitutional Court that judicial philosophy becomes most relevant, along with the ability to elucidate and elaborate general principles of law. A commitment to constitutional values frankly covers the question of a transformative judicial philosophy.
In South Africa we all embrace the ideal of representivity, from the Constitutional Court, which was created to achieve that, downwards. What we need to keep in mind is that even in the high courts the proactive judicial case-flow management now adopted by South Africa, and which Chief Justice Mogoeng Mogoeng is implementing to excellent effect in a number of pilot projects, requires "confident, highly skilled judges conversant with court processes".
Debating representivity
In other words, "the drive for efficiency strengthens the case for the appointment of highly skilled professional lawyers to the Bench, rather than people of different backgrounds simply to make it more representative", as Sir Anthony writes about the other common law jurisdictions now debating representivity.
Representivity needs to find its proper place in the sequence of considerations when the JSC makes appointments. It is a simple fact that the JSC has been conflating and giving equal weight to section 174 (1) and section 174 (2) of the Constitution, instead of selecting on the basis of qualification and fitness in subsection 1 and then considering (but only considering) broad (but only broad) representivity under subsection 2.
The source of the problem is probably the set of criteria the JSC uses, published on September 10 2010. Under the heading "Criteria stated in the Constitution" it lists:
- Is the particular applicant an appropriately qualified person?;
- Is he or she a fit and proper person; and
- Would his or her appointment help to reflect the racial and gender composition of South Africa?
That is a misconstruction of the Constitution. The first two are criteria; the third is a supplementary consideration.
To assist the JSC in the task of finding the right judges for the right courts, my Bill proposes greater clarity in the Constitution's section 174 (1). At present the subsection reads: "Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer." I propose we elaborate "appropriate" qualification with "demonstrable ability to perform the judicial function".
A fit and proper person is necessarily one who has integrity, yet the JSC has listed as "supplementary criteria" the issue of whether the proposed appointee is a person of integrity and whether they have the necessary energy and motivation – so that, too, needs to be set out in section 174 (1).
Experienced persons
The distinction the JSC draws between "competent persons" (technically competent and with a capacity to give expression to the values of the Constitution) and "experienced persons" (technically experienced or experienced in regard to the values and needs of the community) is perhaps the source of the unfortunate and quite unforgivable assumption that competence and colour are two different things.
The JSC also has supplementary considerations on potential and symbolism. Once it works under an amended section 174 (1) and starts applying section 174 (2) as it should, these considerations will hopefully take their proper place.
The Constitution 19th Amendment Bill is intended to assist the JSC. The commission is not to blame for everything that has made it controversial. It is interesting to learn from Sir Anthony's article that the reluctance of silks to serve as judges is a feature of common-law jurisdictions in the United States and Britain too.
Our Bench deserves the best. South Africa deserves the best. And our judges should be South African – the Constitution requires only Constitutional Court judges to be citizens. I've amended that, too.
Dene Smuts is a Democratic Alliance MP responsible for justice issues. Her Private Member's Bill is brought in her personal capacity as the Constitution and the rules of Parliament require.