Text of the presentation by DA MP, Dene Smuts on the Constitution Nineteenth Amendment Bill, to the Portfolio Committee on Justice and Constitutional Development, Parliament, November 5 2013

Portfolio Committee on Justice and Constitutional Development

Object of the Bill

To amend the Constitution of the Republic of South Africa, 1996, so as to further regulate the appointment of judicial officers and the composition of the Judicial Service Commission; and to provide for matters connected therewith.

Background

The Bill aims to give effect to Cabinet policy as encapsulated in the National Development Plan, where it calls for clear criteria for judicial appointment, for impartial selection processes and for a change in the composition of the Judicial Service Commission to reduce its size and the political influence perceived to affect its decisions.

Strengthen judicial governance and the rule of law. Ensure the independence and accountability of the judiciary. Establish clear criteria for the appointment of judges and scale up judicial training to improve the quality of judges. The extension of community service to law graduates, to increase legal representation for the poor and speed up the administration of justice, should be considered.

Although generally sound, South Africa's rule of law could further realise the transformative promise of the Constitution. Challenges such as court administration inefficiencies that denude people of their right to access justice, and judicial appointments that call the impartiality of selection processes into question must be addressed.

For the law to be an agent of change, it must be8 interpreted and enforced in a progressive, transformative fashion. This requires a judiciary that is progressive in its philosophy and legal inclinations. The selection and appointment of judges affects socioeconomic transformation, as well as the rule of law and the independence of the courts. Unfortunately, there is little or no consensus in the Judicial Service Commission (JSC) or in the legal fraternity about the qualities and attributes needed for the bench.

Although the Constitution stipulates general criteria for the appointment of judicial officers; it is important for the JSC to elaborate further guiding principles to build consensus on the qualities and9 attributes of the "ideal South African judge". The criteria should include a progressive philosophy and an understanding of the socioeconomic context in which the law is interpreted and enforced. While the JSC published a broad list of criteria for judicial appointments in September 2010, they require further development and a clear understanding of their meaning and application.

"Progressive" in this context means having "a deep commitment to constitutional values on a range of issues including, empathy and compassion, access to justice, socioeconomic rights and judicial deference." Taken from Cowen S (2010). Judicial Selection: A Timely Debate. Available here (accessed 3 August 2011).

Further reforms include the composition of the JSC itself, which is argued to be too large to function effectively, and to be hamstrung by political interests. The JSC's role is expanding and consideration should be given to whether it is optimally structured to fulfil its responsibilities.

Page 454 of the NDP reads:

The Commission proposes the following:

Accelerate reforms to implement a judiciary led independent court administration.

Establish clear criteria for appointment of judges, with emphasis on the candidates' progressive credentials and transformative judicial philosophy and expertise.

The SAJEI must be given all the support it requires and be well-resourced to fulfil its mandate effectively.

Consider whether the current structure of the JSC is adequate to fulfil its expanding mandate.

Extend compulsory community service to law graduates.

Where we went wrong with the composition of the JSC

There is general agreement that a Judicial Service Commission should include politicians alongside judges and representatives of the legal professions. But the balance we achieved in the Interim Constitution was lost in the final Constitution. At certification there was an objection against the preponderance of politicians. It was rejected in the absence of any Constitutional Principle that either demanded or governed the creation of a JSC. "Its composition was a political choice", the Constitutional Court said. It remains a political choice, and the NDP is right in saying that the JSC is now too large and is hamstrung by  political interests.

Here is a breakdown      of the composition under the Interim Constitution, the Final Constitution, and then my proposal for restoring the balance.

The composition of the JSC under the Interim Constitution was as follows:

The present composition of the JSC is as follows:

Proposal: Reduce the political sector as follows:

Under the Interim Constitution

The Senate and the four Presidential designees were clearly appropriate             under the Interim Constitution, when the Upper House was a house of wise persons on the traditional Parliamentary pattern, and the Cabinet represented a government of national unity.

In the Final Constitution the Upper House became a House of Provinces on the German model, and the Interim Cabinet fell away for political reasons. The four NCOP members were however retained, and six National Assembly MPs added to their number. Justice is a national competence, not a provincial competence, and there can be no doubt that the Assembly should be represented. However, this arrangement swells the number of MPs from 4 to 10.

The four Presidential nominees were retained, too, but they no longer needed to include lawyers, and the consultation previously conducted inside Cabinet (with Mr FW de Klerk) now took the form of non-binding consultation with leaders of political parties in the National Assembly.

How to restore balance

I have kept these existing categories, but reduced their numbers, and carried the principle that half of the MPs from the National Assembly must be opposition members through to the NCOP. I have also proposed that the NA MPs should not include any members of the executive. (Two Deputy Ministers currently serve.)The President already designates his representatives in his capacity as head of the national executive, and the intention is surely to represent legislators pure and simple. We could also consider requiring that one of the two Presidential nominees should be a lawyer, to achieve equivalence between the legal and the political sector. We could, I think should, also consider requiring that each category should nominate as many female representatives as males. I have suggested that the two Presidential designees should retain their role in advising government on the administration of justice, but should play no role in appointments where the President has a discretion, that is in appointments for the two highest courts under section 174 (3) and (4).

Section 178 of the Constitution:

The substitution in subsection (1), for paragraph (h) of the following paragraph:

"(h) [six] four persons designated by the National Assembly from among its members who are not also members of the executive, at least [three] two of whom must be members of opposition parties represented in the Assembly."

The substitution in subsection (1), for paragraph (i) of the following paragraph:

"(i) [four] two permanent delegates to the National Council of Provinces designated together with a supporting vote of at least six provinces, one of whom must be a member of an opposition party,"

The substitution in subsection (1), for paragraph (j) of the following paragraph:

"(j) when considering appointments in terms of section 174(6) and matters under subsection 5, [four] two persons, who are not political office bearers, designated by the President as head of the national executive, after consultation with the leaders of all parties of the National Assembly"

The question of the criteria

The NDP has proposed that the JSC should elaborate further guiding principles to build consensus on the qualities and attributes of the ‘ideal South African judge'...while the JSC published a broad list of criteria for judicial appointments in  September 2010, they require further development and a clear understanding of their meaning and application.

I say NO!

NO because the JSC criteria, which were in fact developed under Judge Mahomed and which were readopted and published by the JSC in 2010, are extremely problematic. To cite just one example: they treat the question whether a candidate is a person of integrity as one of the ‘Supplementary Criteria' quite separate from ‘Criteria stated in the Constitution'. But integrity is precisely intrinsic to the question whether a person is fit and proper.

I say NO also because the NDP's proposals on the qualities of the ‘ideal judge' are completely unacceptable, a view I share with the Minister. Note that the NDP wants a judiciary that is progressive in its philosophy and legal inclinations, and criteria for the appointment of judges which should include a progressive philosophy and an understanding of the of the socio-economic context in which  the law is interpreted an enforced. What does the NDP understand ‘progressive' to mean?

At footnote 8 it explains: ‘Progressive in this context means having ‘ a deep commitment to constitutional values on a range of issues including empathy and compassion, access to justice, socio- economic rights AND JUDICIAL DEFERENCE'. (My emphasis).

Adv Susannah Cowen, from whom this quote is purported to be taken, would be shocked. Her work on Judicial Selection: What qualities do we expect in a South African judge?  was published in May 2010 and has just been reissued by Prof Richard Calland's Democratic Governance and Rights Unit at UCT.

All I can say on the matter of JUDICIAL DEFERENCE is that it is my sincere hope that no economics Minister from the current government is ever appointed to the Justice Ministry. The judiciary is not an instrument of government policy.

A funny thing happened on the way to the negotiating forum

Persons who have made submissions on the 19th Amendment so far tend to believe that a Constitution is written for the long term and that better definition of the criteria could be given in the JSC Act. They have nevertheless given alternatives to my proposals for section 174 and it has been one of the pleasures of this process, in the form of wonderful correspondence even with those opposed outright, like the Black Lawyers

Association, that everyone wants to talk some more.

For my part I have become more convinced than before that we need to amend the appointment criteria in section 174.

As you see in my amendments, there is one substantive amendment that can only be effected constitutionally. That is the fact that ALL OUR JUDGES SHOULD BE SOUTH AFRICAN, not only Constitutional Court judges. To me this is simply self-evident.

The other reason I have become convinced that we need to rewrite s 174 (1) is that a funny thing happened on the way to the negotiating forum. Constitutional Principle VII stated that the judiciary shall be appropriately qualified, INDEPENDENT AND IMPARTIAL and shall have the power and jurisdiction to safeguard and enforce the Constitution and all fundamental rights.

The Interim Constitution said in s 96 that the JUDICIARY (not the courts) shall be independent, impartial and subject only to this Constitution and the law.

The Final Constitution made the courts independent in s 165, but s 174 (1) - the criteria for the appointment of judges - is silent on independence.

Deference versus independent-mindedness

The fact is that s 174 (1) is so broad and undefined because negotiators faced the dilemma that transformation was necessary, especially on the Constitutional Court, and that it was simply not possible to appoint only silks at that time.     Neither was the question of judges' independent-mindedness brought as an objection at Certification. The Certification judgement managed to work the issue into the JSC challenge by referring to CP VII but said only that ‘appropriate qualification and fitness for office were objective

criteria  subject to constitutional control by the courts and meet the requirements of CP VII IN THAT REGARD'. It really does not meet the self-evident criterion of independent-mindedness in any other regard, and I suggest that independence and impartiality should be added to my amendments.

The President will have no objections: he said at the Second Judicial Conference that ‘ the transformation of the judiciary  should be advanced and undertaken without interfering with the principle of judicial independence...as the Executive we respect without reservation, the principle of judicial independence and the rule of law.'

Deference would be a disaster

Now let me share with you from Adv Susannah Cowen's work the further thoughts of Judge Arthur Chaskalson. Adv Cowen writes in Chapter 3 of her work: "...it is axiomatic that South African judicial officers must have both the courage and the disposition to act with an independent mind. Of course, the grant of secure tenure to judges is an important means of protecting judicial independence, but it is insufficient: independent-mindedness is an essential quality."

Former Chief Justice Chaskalson put it in these words to her in September 2009:

‘Tenure is an essential component of independence but it is not a sufficient guarantee of independence. TENURE OF COMPLIANT JUDGES WOULD BE A DISASTER. Independence is a state of mind...assessing the independence and integrity of candidates is an essential part of the JSC's work and should be foregrounded in the consideration of all judicial appointments.'

I therefore propose that we should add independence and impartiality to my amendments to the criterion of fitness and propriety, which also spell out that integrity and professional conscientiousness are part of fitness, as well as commitment to Constitutional values.

Appropriate qualifications and equal assessment

I deal with these two proposed amendments simultaneously.

Appropriate qualification really cannot be left as loose as it is in circumstances where the JSC draws a distinction in its 2010 document between ‘competent' and ‘experienced' persons (see Supplementary Criteria 3 and 4.) That distinction is possibly the source of the unforgivable assumption that competence and colour are two different things.

The purpose of transformation is legitimacy, but if people are appointed to the Bench who cannot do the job, legitimacy is lost.

I have required ‘demonstrable capability to perform judicial functions'. I have received many objections, and many counter-proposals, which you can enjoy by perusing the submissions. One of the further objections you will receive is that this limits appointees to persons who have acted as judges, and that acting appointments are in the hands of the Minister. Let us take more submissions, and then talk.

Almost everyone has objected to my requirement for equal assessment during  interviews, and suggested that impartiality is better, given the need to transform. I remain convinced that sections 174 (1) and (2) are facets of a two stage process, and that the requirement to consider broad representivity as to race and gender comes AFTER it has been established whether the candidate can do the job. After all, that is what we do in  the National Assembly every time we appoint candidates to Chapter Nines under the mirror-image provisions of section 193. We have been doing it for nearly twenty years.

What is the problem with the JSC?

Section 174 of the Constitution:

Existing section 1:

"Any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer. Any person to be appointed to the Constitutional Court must also be a South African citizen."

Proposed amendment:

(1)(a) Any South African citizen who is appropriately qualified and a fit and proper person may be appointed as a judicial officer.

The determination whether a person is appropriately qualified must be made with due regard to demonstrable capability to perform judicial functions.

The determination whether a person is fit and proper for judicial office must be made with due regard to their demonstrated commitment to Constitutional values, professional conscientiousness and personal integrity.

All candidates for judicial office must be assessed equally

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