Reconsidering the Chief Justice extension of tenure amendment
The extension of the term of office of the Chief Justice by President Zuma raises several constitutional issues.
The muddle around the procedure to extend the term of office of the current Chief Justice has its origins in legislation that is in conflict with a constitutional amendment of 2001, which in turn is in conflict with other constitutional norms. This puts the Chief Justice in a particularly difficult position because the constitutionality of constitutional amendments falls in the exclusive jurisdiction of the Constitutional Court.
Before Parliament ex post facto condones the extension of office of the Chief Justice by passing legislation to effect that, it might be wise to reconsider the legal position as a whole and to use the opportunity to repeal the 2001 amendment.
To briefly recapitulate the course of events: President Jacob Zuma extended the term of Office of Chief Justice Sandile Ngcobo on 2 June 2011 in terms of section 8(a) of the Judges' Remuneration and Conditions of Employment Act of 2001. This provision determines that if the Chief Justice reaches retirement age (i.e. 70 years) and "becomes eligible for discharge from active service", the President may request him to stay on "for a period determined by the President", which may not go beyond the age of 75 years.
This provision, which confers the power upon the President to extend the term of office of the Chief Justice, however, is in conflict with the constitutional provision regulating such an extension. Parliamentary legislation of a lower ranking therefore puts the President in a difficult position, because it conferred powers on him that were allocated to a different state organ in terms of the Constitution.
In 2001, when the term of office of Chief Justice Chaskalson, who was very popular, drew to a nigh, Parliament introduced the so-called "Chaskalson amendment" which allows Parliament to extend the term of office of the Chief Justice by way of statute.
Parliament apparently realised that it made a law which is in conflict with the Constitution. The ANC majority then thought that it would suffice if it merely "backs" the President's extension of Chief Justice Ncgobo's term of office. Meanwhile the Democratic Alliance convinced them that Parliament would need to pass a law that would extend the term of office of the Chief Justice.
After the announcement by President Zuma, CASAC and the Centre for Applied Legal Studies (CALS) at the University of the Witwatersrand announced that they would challenge the legality of the extension of the term of office by the President and lodged a complaint in the Gauteng High Court to contest the legality of section 8(a) of Judges' Remuneration and Conditions of Employment Act. A High Court has the jurisdiction to hear such a matter.
However, they also indicated that they would challenge the tenability of executive appointments of Constitutional Court judges because that infringes upon the separation of powers and judicial independence. This part of the challenge cannot be heard by the High Court because that falls in the exclusive jurisdiction of the Constitutional Court in terms of section 167(4)(a) of the Constitution.
CASAC and CALS further indicated that they might also challenge the 2001 amendment which created the exception to the general rules regulating the tenure of Constitutional court judges. Such a challenge of a constitutional amendment also falls in the exclusive jurisdiction of the Constitutional Court (section 167(4)(d) of the Constitution).
Should they decide to further pursue the matter in the Constitutional Court, the current Chief Justice would be obliged to recuse himself due to the legal maxim nemo iudex in sua causa since he may not be a judge in his own cause.
There are several issues at stake, which are indeed in need of clarification. Firstly, the extension of the term of office of the Chief Justice by the President in the Judges' Remuneration and Conditions of Employment Act is in conflict with section 176(1) of the Constitution; and secondly, the 2001 constitutional amendment of section 176(1) is not generally applicable law and thus unconstitutional. However, as CASAC and CALS indicated, the current issue about the extension of the term of office of the Chief Justice goes deeper. The third aspect that needs to be considered focuses on the separation of powers and judicial independence.
The question therefore is whether the certification of section 174 and section 175 of the Constitution by the Constitutional Court in 1996 was not already flawed insofar as it did not comply with two central principles specified in Schedule 4 of the 1993 Interim Constitution. Finally, the envisaged Eighteenth Constitutional Amendment Act, which intends to make the Chief Justice the "head of the judicial power", might have detrimental consequences for both external and internal judicial independence because his appointment, tenure and remuneration is controlled by the executive.
To start with, ordinary legislation has to be in conformity with constitutional norms. Despite the clear wording of section 176(1), which states that Parliament can extend the term of a Chief Justice, Parliament conferred this power upon the President in section 8(a) of the Judges' Remuneration and Conditions of Employment Act of 2001. The enabling statute is therefore in conflict with a provision of constitutional ranking.
The Constitutional Amendment Act 34 of 2001 took effect on 21 December 2001, whereas the Judges' Remuneration and Conditions of Employment Act 47 of 2001 took effect on 22 November in the same year. One could therefore presume that these statutes were drafted more or less at the same time. Hence, one could ask whether the Members of Parliament take their inherent legislative power seriously and pay attention to the consistency of laws they adopt or whether they just vote on bills in the way their party's caucus expects them to.
Apart from that, the mere fact that the ANC majority in Parliament backed the extension of the term of office of Chief Justice Ncgobo by President Zuma does not rectify the irregularity that Parliament conferred the power to do so upon the President by way of legislation that is in conflict with section 176(1) of the Constitution. This statute needs to be amended to bring it in line with the relevant constitutional provisions.
Secondly, one also will have to consider the constitutionality of the 2001 amendment, which made an extension of the term of office possible. The original section 176(1) of the Constitution read as follows:
"A Constitutional Court judge is appointed for a non-renewable term of 12 years, but must retire at the age of 70."
This provision was in line with the constitutional limitation of state power in section 36. In terms of this provision, legislative power is restricted insofar as laws must apply generally. This is a central tenet of the constitutional state paradigm that Parliament may not make laws applying only to a specific individual. This opens the backdoor to infringe upon the equal treatment clause (section 9 of the bill of rights). The legislature may therefore not make a law that states, for example, that the property of Mr X is expropriated or that Ms Y is appointed to a specific public office. A lex ad personam is not allowed in a constitutional state.
The 2001 amended version of section 176(1) reads as follows:
"A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge."
Although the legislature may create exceptions to a general rule, such an exception must nevertheless be generally applicable as foreseen by section 36. The legislature would, for example, be allowed to make a law stating that individual taxpayers have to pay taxes at the rate of progression applicable to their taxable income, with the exception of taxpayers who are parents of dependent children under the age of 18 whose individual income should be added and the sum total split equally to allow a more advantageous tax rate to parents falling in the specified category. Such a tax break is fair because parents having children carry the financial burden of raising their children. This contributes indirectly to secure sufficient future public funds, which is in the public interest.
In the case of the above amendment, however, this condition has not been met. The gist of the amendment is that Parliament may make a law stating that: "The term of Chief Justice X is extended until...". This is an individualised statute which overturns the equal treatment of constitutional court judges with regard to the duration of their term of office.
The fact that the Chief Justice presides over the proceedings of the Constitutional Court does not put him in a separate category compared with other constitutional court judges. He is a primus inter pares in terms of the constitutional norms underpinning the republican form of functions exercised by office bearers in the constitutional state.
It would likewise be unconstitutional for Parliament to make such an individualised exception to the two terms of office, which are maximally allowed for the head of the executive in terms of section 88(2) of the Constitution. Such an extension of office beyond the prescribed term is based on other considerations and not generally applicable rules. It could easily be abused to keep a specific person indefinitely in office.
Thirdly, the real issue is whether it is constitutionally tenable that the President as head of the executive should appoint judges of the Constitutional Court. If the Chief Justice should have comparable powers with regard to other state organs in other branches of state power, this would imply that the Chief Justice should be able to have some say in the selection the Speaker of the National Assembly or the appointment of Cabinet Ministers. The mere idea is so far-fetched that nobody would even give it a second thought.
Yet it appears "normal" that the President "as head of the national executive" should be able to directly appoint Constitutional Court judges in terms of section 174(3) and (4). He also indirectly appoints all other judges in terms of section 174(6) after a pre-selection by the Judicial Service Commission. Apart from that, the President and Minister of Justice and Constitutional Development have the power to hand-pick potential judges by appointing acting judges in terms of section 175.
One may therefore very well ask how it could happen that the Constitutional Court allowed such extensive executive inroads upon judicial independence when it certified these provisions in 1996. In terms of the constitutional settlement that was reached during the Codesa deliberations when the Interim Constitution was drafted, it was agreed that a final Constitution should be drafted by a democratically elected parliament. Parliament was bound to draft this constitution to be in conformity with 34 constitutional principles that were listed in Schedule 4 to the 1993 Interim Constitution. It was further required that the Constitutional Court should certify that these principles were met before the final Constitution could be adopted.
There are two principles which are of interest here.
- Principle VI stipulated: "There shall be a separation of powers between the legislature, executive, and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness". (emphasis added)
- Principle VII stated: "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." (emphasis added)
It is trite that the power to appoint office bearers could easily denigrate to a system of personal patronage. In Glenister II this was a major concern of the Constitutional Court that an anti-corruption unit should have enough distance from the executive to ensure its independence. The court ruled that appointments and control over the remuneration and tenure of members of such a unit by the executive is contra-productive to ensure its independence.
The principle of appropriate checks and balances to ensure executive accountability obviously also applies to judicial appointments and the tenure and remuneration of judges. This is of particular importance with regard to Constitutional Court judges, because the Court is the highest instance to rule on a conflict between state organs when it comes to the demarcation and exercise of their constitutional competencies.
One could have understood it, if the Constitution conferred the power upon the President in the capacity as head of state to officially appoint judges to honour the stature and import of these offices. This is not the case, however. The relevant provisions confer these powers upon the President in the capacity as "head of the executive". The Constitutional Court addressed judicial independence in context of the separation of powers in four rather brief paragraphs, which focused on brushing aside objections to undue executive influence on judicial appointments (see: In re Certification of the Constitution paras 114-117).
It is hard to understand that the Court certified these provisions in the light of concerted critique over many years of the Westminster practice of judicial appointments. That enabled the National Party government to select judicial candidates whom it expected would be more favourably inclined towards the government's policies.
The most probable explanation why the Constitutional Court certified the executive appointment of judges in sections 174 and 175 is that is was a well-geared practice for almost a century. Apart from that, the introduction of the Judicial Service Commission somewhat ameliorated unbridled executive power to appoint judges. To get more clarity on the issue, a brief look at the previous judicial appointment procedures might be worthwhile.
The Westminster system is usually associated with the doctrine of parliamentary sovereignty, but it is actually based on a more complex system of power-sharing between different classes in the constitutional monarchy of Great Britain. Unlike the constitutional state systems, which slowly evolved in Continental Europe and departed from a separation of powers between the judiciary, legislature and a professional judiciary as envisaged by Montesquieu, the British system was based on different tiers of courts with each class having the privilege to appoint judges to a specific tier.
Accordingly, the House of Lords could appoint judges to the highest court of appeal, the Law Lords. The Monarch had the royal prerogative to appoint judges to high courts on recommendation of the Lord Chancellor, whereas the justice minister representing the House of Commons could appoint magistrates to the lower courts. The royal prerogative power was not a real power: the actual decision was taken by the Lord Chancellor and only exercised on a pro forma basis by the Monarch. Against this background, it is understandable why Locke's paradigm of the separation of powers did not specifically refer to the judiciary as a branch of state power in its own right.
In this system of class-based judicial appointments, the aristocracy had the upper hand when it came to influence "judge-made law" in the common law tradition, but this was balanced out with the aid of the doctrine of parliamentary sovereignty, which enabled the Commons to make laws that would supercede common law.
The powers of the higher tier judges were further restricted: they could not strike legislation down and had only very limited powers to review administrative action taken in terms of statutory powers conferred upon the Cabinet of her Majesty in the Lower House. One can therefore say that the 19th century doctrine of parliamentary sovereignty in Great Britain was an important milestone in a long historical development where the Commons finally achieved a parity of power with the monarch and the aristocracy.
Another difference compared to Continental constitutional models is that the prosecutors are regarded as a part of the executive branch in Great Britain because the Attorney-General was the chief legal advisor and chief prosecutor of the Crown. In the late 19th century criminal prosecutions were put in the hands of the police, with prosecutors being introduced much later.
In the aftermath of the Napoleonic conquests, legal developments on the Continent were still very much influenced by French law. In the mid-19th century the next big development after Montesquieu's separation of powers took place when the office of the prosecutors was split off from the judiciary. This was necessitated to secure impartiality of the judge, which was not a given if he was also expected to conduct the criminal investigations in a case. Thus continental systems have two organs in the third branch of state power.
These systems are also based on a more extensive concept of rule of law which encompasses an element of substantive justice and accountability of office bearers. For this reason, the executive is strictly precluded from taking any influence on judicial appointments. In some countries parliament is allowed some degree of influence but this too is increasingly criticised. In 2009, the Council of Europe recommended to its Members States that at least half of the members of judicial appointment bodies should be made up of qualified judges to secure judicial independence.
It would seem that under the influence of the European Union, Great Britain launched a major project of constitutional reform. It started tentatively in 1985 with some reforms of the prosecuting system, but they continue to use the model of functional independence of prosecutors within the executive branch. This has the drawback of blurring the distinction between the state organs responsible to enforce criminal law and administrative law respectively.
As a next step, the class-based judicial appointment system was abolished in 2005. The Law Lords were replaced with a proper Supreme Court sitting its own buildings. Today Britain has a model judicial appointment system with practically no political influence. The Judicial Appointments Commission consists of 15 members, mostly from the legal profession. The judiciary has 7 representatives and the barristers and solicitors one each. The six lay members may include law professors.
South Africa largely copied the old British system of judicial appointments during colonial times, albeit in an abridged form. Peerage was not accepted in South Africa. Thus only the second and third tiers were implemented: the head of state thus had the prerogative power to appoint judges to the higher courts on recommendation of the justice minister, and the justice minister appointed magistrates to the lower courts. When the offices of the head of state and the prime minister were fused by the 1983 and 1996 Constitutions, the judicial prerogative of the head of state to appoint judges was turned into a straight forward executive power. This might explain why the Constitutional Court certified judicial appointments by the President "as head of the executive".
The certification of these provisions is not in line with the above mentioned constitutional principles VI and VII. Principle VI prescribed a clear separation of powers between the judiciary, the executive and the legislature with "adequate checks and balances to ensure accountability".
Principle VI intended to secure the external aspect of judicial independence vis-á-vis the executive and legislature. Executive appointments of judges therefore clearly constitute an anachronism in the separation of powers of the constitutional state. Judicial appointments by the executive could easily lead to personal patronage. It is obviously contra-productive if the judiciary should be independent to scrutinize the constitutionality of legislation and critically review administrative action taken by the executive.
The Judges' Remuneration and Conditions of Employment Act tightens the grip of the executive over the judiciary even further. Section 2 provides that the rates of judicial salaries are determined by the President. It is not regulated neutrally by way of a statute. In addition, the President may remove a judge from office if he becomes "afflicted with a permanent infirmity of mind or body" which "renders him incapable of performing his duties". The very broadly formulated power in terms of section 3(2)(c) leaves it completely to the discretion of the President to interpret these powers as he pleases.
Another problem is that sections 174 and 175 cast judicial appointments in the form of an executive power with a direct external effect. Thus judicial appointments have de facto been scaled down to the level of administrative action, even if the Promotion of Administrative Justice Act tries to get around it with a double ouster clause. One may therefore ponder the question whether judicial candidates should be able to contest non-appointment as "unfair administrative action" in terms of section 33 of the bill of rights.
In the light of the envisaged Eighteenth Amendment of the Constitution one should also focus on the element of internal judicial independence. This entails that the Chief Justice, the President of the Supreme Court of Appeal, and the various provincial Judge Presidents may not prescribe to individual judges how they should adjudicate in a particular case. The hierarchic structure of jurisdiction between the different tiers of the courts, with lower courts being bound to judgements of higher courts in terms of stare decisis does not imply a hierarchic internal judicial control of judges.
One should therefore carefully consider the envisaged constitutional amendment which intends to add a subsection (6) to section 165, which would install the Chief Justice as the "head of the judicial power". It is inter alia envisaged that he should exercise "responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts".
This sounds pretty much like creating an internal hierarchic system comparable to the model applicable to the executive branch. This could empower the Chief Justice to oust the jurisdictional responsibilities of the President of the Supreme Court of Appeal and the individual Judge Presidents of the Provincial High Courts.
It is surely commendable if there would be better monitoring to ensure greater consistency in sentencing. The wording "norms and standards" does not make clear though whether this should just take on the form of guidelines similar to that of prosecuting guidelines or whether the Chief Justice would be able to hierarchically "enforce" that as "head of the judiciary". Persons holding office in a leading capacity of various state organs within the third branch of state power are always bound to the rule of law and the principle of legality. Any undue influence to undercut that would be unconstitutional.
The idea that the Chief Justice of the Constitutional Court should be the "head of the judiciary" also prompts the question whether this unusual construct might be intended to serve the purpose to control the judiciary via a presidential appointee to this most powerful position? That would affect both external and internal judicial independence.
There is much to be said in favour of independent self-administration of the judiciary. This might indeed be a very sensible further development of the separation of powers, but it should take cognisance of the peculiarities of judicial independence. A collective body representing each tier in the judicial hierarchy of courts might be more appropriate than appointing the Chief Justice as the "head of the judiciary".
It is a viable possibility that such a "governing body" with its own judicial administrative structures should take over the function of overseeing the practical administration of the courts. However, self-administration of the judiciary would hardly be possible as long as the Minister of Justice budgets to finance the courts and as long as the purse strings are held by the director-general of the department of justice (section 14 of the Judges' Remuneration and Conditions of Employment Act).
Yet, if one sets out to reform the judiciary to give more substance to judicial independence, it ought to be accompanied by a reform the Judicial Service Commission, which is currently stacked with political appointees outnumbering the judiciary by a ratio of 1:8.
The current dilemma arising from the extension of the term of office of the Chief Justice in combination with the envisaged constitutional amendment thus touches on very central aspects of the separation of powers to ensure judicial independence and to avoid judicial politics. It would definitely be worthwhile to take enough time to regulate this properly.
Loammi Wolf specialises in constitutional law and has a special interest in transitional democracy, constitutionalism and state organisation law. She obtained an LLM at the University of Virginia and a doctorate in constitutional law at Unisa. She is currently running the initiative Democracy for Peace.
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