Who should do the job of Judging our Judges?

13 October 2014

The most carefully considered decision, in any established democracy, is the way judges are appointed. Selecting those responsible for interpreting the Constitution and upholding the framework of rights and responsibilities within which society functions, is the most essential element in protecting our freedoms. 

Beyond our Constitution's requirement that "any appropriately qualified woman or man who is a fit and proper person may be appointed as a judicial officer", it is imperative that these appointees are persons of great learning, experience and integrity - unbending before power and regarding everyone as equal before the law.

Unfortunately, ours has become a deeply flawed system. The ANC-loaded Judicial Service Commission's (JSC) selection of politically pre-determined choices, provides a thin veneer for the most extreme and dangerous form of cadre deployment. Instead of safeguarding us from a situation in which an executive chooses the judiciary, the JSC now often provides a form of legitimacy for this very process.

In the United States, the public scrutiny and debate around the appointment of Supreme Court judges is intense. It is high time South Africa took the same level of interest in appointing our own judiciary.

When evaluating the suitability of a judge candidate, one's starting point should be: If I (or one of my loved ones) was appearing in court on trumped up charges, would I trust this candidate to evaluate the evidence fully, fairly and impartially, with enough knowledge of the law and experience of life, to ensure that justice is done, and that extraneous issues (such as political vendettas) do not influence the outcome?

One way to appreciate the importance of an independent judiciary, is to fall from power and no longer be in a position to manipulate the implementation of the law - something which Julius Malema knows all about. (And in a cruel twist of fate, he now finds himself on the Commission, as one of three opposition MPs, where he will most likely be powerless to prevent the appointment of those who could oversee his own downfall.)

The JSC hearings last week brought all of this into sharp relief, and reinforced the DA's view that serving politicians should play no role - or, at most, a significantly reduced role - in the appointment of judges.

Once again, we saw evidence of a pre-caucused position among most of the politicians on the Commission. If this results (occasionally) in a good outcome, it is usually fortuitous. It certainly has little to do with any serious knowledge or understanding on the part of the politicians or their appointees (who constitute the JSC's majority) of the documents that are supposed to provide an informed basis for a probing interview.

In fact, it was immediately obvious last week that very few of the politicians present had even read the documentation, which includes CVs, questionnaires, previous judgements and assessments by various bodies representing the legal profession.

One senior politician was so woefully unprepared that he did not even know how many vacancies at the bench had to be filled.

So it is hardly surprising that a knowledge of the law or track record at the bar or bench is not the primary test of a candidate judge. It is also painfully and repeatedly clear that the politicians' grasp of even the most basic precepts of the law, is woefully lacking.

As things currently stand, the JSC comprises 23 members (and occasionally 25, when premiers and judges president sit in on specific matters). This number is made up of the Chief Justice, the President of the Supreme Court of Appeal, a Judge President, a cabinet member (Justice), two practising advocates, two practising attorneys, one teacher of law, six members of the National Assembly (three from opposition parties), four members of the National Council Of Provinces (NCOP) and four people designated by the President.

Under presidents Mandela and Mbeki, the NCOP members were traditionally split between the ANC and opposition parties, adhering to the notion of proportional representation. In 2009, the single DA member of the NCOP was removed and replaced by an ANC member, which meant that 12 of the 23 Commissioners (a voting majority) were ANC politicians or appointees.

This time round, the ANC rejected all nominations from other parties and deployed four of their own NCOP members to the Commission. The result is now a dangerously ANC-heavy JSC. This paves the way for undisguised politically-driven cadre deployment, despite the presence of the country's most eminent jurists.

Last year, DA MP Dene Smuts introduced a Private Member's Bill in Parliament with Constitutional amendments to the way Judges are selected. This bill echoed reforms proposed by the National Development Plan (NDP) but, unsurprsingly, it was blocked in parliament by the ANC.

The DA's proposed changes would see the JSC shrunk to a size at which it can function properly. This would be achieved by cutting in half each of the categories directly elected (NA and NCOP), and limiting the participation of the four Presidential appointees to the selection of judges where the president does not have a discretion.

The JSC's lists of nominees for Constitutional Court judges would also have to include three names more than the number of places to be filled.

Sadly, this will not happen, as the ANC's dominant faction moves to tighten its grip on the JSC, just as they did with the National Prosecuting Authority.

While deployed politicians outnumber law experts on our own Judicial Service commission, it is perhaps helpful to look at who selects judges in other countries.

In France, an independent body, the Conseil Superieur de la Magistrature, oversees the appointment process and makes recommendations to the president.

In India, the president appoints judges chosen by a "collegium" of the Supreme Court, comprising the Chief Justice and the four most senior associate judges of the court.

In the United States, the president consults with the Department of Justice, his own White House staff and the Senate. The American Bar Association also conducts extensive interviews with the candidates and their legal communities to establish not only their qualifications, but also their temperament. Finally, the FBI investigates all candidates.

These are countries that take judicial independence seriously. If we are to do the same, it is imperative that we remove the capacity of politicians to influence the legal system in any way.

What happened to the National Prosecuting Authority cannot be allowed to happen to our judiciary. It is up to us to unite against it.

This article by Helen Zille first appeared in SA Today, the online newsletter of the leader of the Democratic Alliance.

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