There is nothing constitutionally amis with the move by the ANC to replace the lone opposition nominee of the National Council of Provinces (NCOP) on the Judicial Services Commission (JSC) with one of its own delegates. But the move will strenghten the view that the ANC is following a “good cop” “bad cop” routine with the judiciary.
On the one hand President Jacob Zuma has been saying all the right things about the independence of the judiciary (and good for him, too), but it is unclear whether behind the scences the ANC and the government it leads (of which Mr Zuma may or may not be a mere figurehead) is not trying to “pack” the JSC and then the courts with “sound” people that would not be stupid enough to find against the ANC and its leaders when they are charged with corruption or challenged about the dereliction of their constitutional duties.
Now that the ANC has replaced the DA delegate from the NCOP, all four of the NCOP representatives on the JSC are now ANC members. Section 178(1) of the Constitution states that the JSC consists of both lawyers and politicians.
There are usually either eight or nine independent lawyers on the JSC: the Chief Justice, who presides at meetings of the Commission; the President of the Supreme Court of Appeal; one Judge President designated by the Judges President; two practising advocates nominated from within the advocates’ profession to represent the profession as a whole, and appointed by the President; two practising attorneys nominated from within the attorneys’ profession to represent the profession as a whole, and appointed by the President; one teacher of law designated by teachers of law at South African universities; and when considering matters relating to a specific High Court, the Judge President of that Court.
The other fifteen or sixteen members may be lawyers but they are all in effect political appointees (although three of them must be opposition party members serving in the National Assembly while some of the President’s four appointees have in the past been independent minded and well respected lawyers) and they are: the Cabinet member responsible for the administration of justice, or an alternate designated by that Cabinet member; six persons designated by the National Assembly from among its members, at least three of whom must be members of opposition parties represented in the Assembly; four permanent delegates to the National Council of Provinces designated together by the Council with a supporting vote of at least six provinces; four persons designated by the President as head of the national executive, after consulting the leaders of all the parties in the National Assembly; and when considering matters relating to a specific High Court, the Premier of the province concerned, or an alternate designated by each of them.
There is therefore a very precarious balance on the JSC between party political appointees on the one hand and lawyers (always committed to transformation, of course) on the other. Maybe the move by the ANC to replace the DA representative from the NCOP with one of its own members has more to do with the ANC vindictiveness towards the DA or its need to reward a loyal cadre for services rendered than with wanting to pack the JSC with people that would force through the appointment of pro-executive yes men and women to the bench.
If President Zuma does not replace the four members on the JSC that serves at the pleasure of the President (which can be replaced at any time), or if he replaces them with well respected lawyers, the hullaballoo about the replacment of the DA’s lone representative from the NCOP would have been unnecessary. If, however, he uses his power to appoint four staunch ANC people to the JSC, we will know that he was lying when he told the judges that the ANC respects the independence of the judiciary.
I am still hopeful that the President wuill not try to pack the JSC with disciplined cadres of the ANC in order to try and influence the appointment of anti-poor, pro-executive judges, but I holding my breath.
Prof, take a breath of fresh air.
What I’d like to know is: what can be done if Zuma does appoint staunch ANC people? We may be surprised that these staunch ANC people may be reasonable people who will want the best for South Africa, and not just the ANC. They may ensure that the judiciary is a strong one that is not to be tampered with and able to keep watch over us mere mortals. I also believe that we will all preserve the rule of law, for the shepard (the judiciary) is of little use without a reliable staff.
I hope I’m not asking for too much from the powers that be.
I may very well be wrong here. And I trust I shall be forgiven if I am. But it strikes me that some people may assume that a ruling party seeking to see some appointments of judges sympathetic to its ends is necessarily a bad thing. I am not so sure about that.
Now I am not about to describe the quality of the reasoning I mean to advance in support of the view that some self-concern from a ruling party when appointing judges is not necessarily harmful or even undesirable. But I shall offer that reasoning because (a) a submission needs a basis and (b) maybe some people would care to agree or object.
A ruling party may well be justified in trying to retain its political pre-eminence. It may seek to do so through the implementation of certain policies. And it may stand the best chance at realising the implementation of those policies with just a little love from the bench. In a nutshell, it could be that we cannot realistically expect a ruling party to run too great a risk of promoting judicial obstruction of its own ends. And that risk could be quite properly and fairly limited with key appointments.
Further, it is fair to say that the bench should check the executive. But as many who post on this blog have mentioned, a measure of deference from the courts is desirable. That is, can one not argue that judges and politicians can at once work both with and against each other? That courts can let government get on with it at least some of the the time given its superior (we hope) appreciation of various concerns? And could some key appointments not foster a suitable measure of yin and yang? I think this argument could be made.
So I think that one question to which we as a community of debaters may wish to direct some attention is: to what extent, and given what guidelines, is a ruling party justified in seeking sympathetic judicial appointments?
Leigh, that was beyond my years… I think what your last paragraph is ineresting. This is chiefly because of the US Supreme Court’s appointments and that of Judge Satamayor (I hope the name’s right). If the JSC does appoint a CC justice who is sympathetic to the ANC we may take comfort in the fact that, currently, such appointments are not lifetime appointments. For other judges, we may well hope that the law is not going to be abused simply to further ANC ends (but remember Adv Mpshe). In our country I think it may be dangerous to follow the USA pattern. I must say, however, that the ANC will probably not want to upset us all in one move. If they do want to make great changes, they best do it slowly.
Leigh – presuming those judges would be expected to apply the law fairly, then nothing wrong, technically speaking. What pro-poor government wouldn’t want pro-poor judges on the bench? Presuming those judicial appointments are made on merit of course, the candidates being strong in the relevant areas, that would be acceptable.
However, where a government forces through judicial appointments to benefit the ruling party, there would be a problem. For example, if a judicial officer was appointed over much more qualified candidates purely because in the past he had given rulings only in favour of the ANC, which were generally subsequently overturned, this would be problematic.
The other issue to consider is one of checks and balances. For example, the CC has a panel of judges. Lets presume the bench was completely composed of communist / socialist / left-leaning judges. This would likely worry business and foreign investment. However, if the bench was completely composed of capitalist / right-leaning judges, it is possible that justive would be denied to human rights groups bringing actions against big business for a variety of issues. Thus, it is best to have a mix of both.
I would say the healthiest composition of a judicial board, committee or bench would be one of a mix of opposing views which could be debated within the parameters of the applicable legislation, and one where the participants were not tacitly or explicitly expected to toe the party line. Unfortunately, the ANC has shown, for example by firing Vusi Pikoli, that even independent institutions are expected to acquisce to the demands of Luthuli House. And for this reason, I find the notion that the ANC would wish to stack the JSC with sympathetic members very frightening indeed in the South African context.
Leigh, you make an a good point indeed. One should not get hysterical just because the ANC wants to instill judges that share the broad vision of the party – it is their job to do so. But it seems to me there might be a difference between this entirely acceptable desire on the one hand, and a desire to appoint judges that would not act without fear, favour or prejudice and would not fulfill their task as judges to check the exercise of power of the other two branches as required by the Constitution on the other. There is a gray area in between these two positions and I suspect that is where we are finding ourselves now.
Nkululeko, I read your last post as follows: given recent occurences in our country, judicial appointments made largely to promote political agenda may well be undesirable.
I would certainly agree. And I also accept the evidentiary basis for the above view which you provided. That is, I would be inclined to accept that the Mpshe decision for the NPA to abandon its case against Zuma – and other recent happenings as well – tend to suggest that the ANC has shown a propensity for abusing its resources. So maybe we as South Africans need to be keenly aware of the potential for politically motivated appointments to undermine the rule of law.
Professor, I think that the moderate position which you seem to endorse is probably amongst the most tenable to be had in the current context.
You do not deny that a ruling party could be justified in seeking appointments of jurists that subcribe broadly to the party’s aims and designs. But as a counterweight, you rightly point out that the above position is quite distinguishable from going for weak judges who would lack the heart and character to rule against government where the merits and constitutional dictates in question demand holdings that are adverse to government.
So I think that you and I could probably agree that one critically important guideline for judicial appointments (even where the ruling party’s preferred picks are concerned) is that the candidate must be willing – and maybe even have shown a willingness to – rule against government where facts and law militate against the state.
Big Slipper, it seems to me that much of the core content of your post agrees heavily with what both Nkululeko and the Professor have said.
As I read the cumulative effect of the posts in that respect thus far, the core view seems to be that there is nothing inherently or automatically objectionable about a ruling party going for some sympathetic picks. But even those picks must earnestly appreciate their duty to preside without fear, favour or prejudice. Or as you righly said, they must still be fair.
And I accept the further point which you made. You righly denote that the healthiest bench which comprised more than a single judge would be one which housed judges that tend to take different stances – all of which, as I am sure you will agree, must be ably substantiated.
Having engaged with the Professor, Nkululeko and the Big Slipper, and drawing on views expressed in earlier discussions, I think one can initiate a scheme of guidelines for appointments that would include the points and criteria set out below.
First, there is nothing inherently objectionable about a ruling party going for some picks that would largely endorse its designs.
But secondly and very importantly, even the preferred picks must be willing to rule against government where the dictates of fact, legal principle and justice indicate to that effect.
And for a third, there should be keen awareness of the desirability of a representative bench (even if such a move would be geared largely at securing legitimacy for the courts and not at improving the substance of our jurisprudence).
So to tender a tentative general answer to the question of the extent to which a ruling party would be justified in going for sympathetic picks: a ruling party may do so. But in so doing, it must take reasonable steps to (a) promote fairness (b) avoid doing violence to constitutionally protected rights and (c) ensure that it is able to extinguish its constitutional duties.
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