Fix the JSC rather than banning John Hlophe from serving on it

What the MK party did when it nominated Dr John Hlophe as its representative on the Judicial Service Commission was to give its voters what they wanted: defiance, contempt and chaos. The nomination was not only politically astute, it was (from an MK perspective) entirely rational.

The decision by the National Assembly to endorse the uMkhonto Wesizwe (MK) party’s nomination of disgraced and impeached former Western Cape Judge President John Hlophe as its representative on the Judicial Service Commission (JSC) has (predictably) led to widespread outrage from supporters of a rules-based system of governance. (When I say a decision by MK, I mean, of course, a decision by Jacob Zuma, for whom MK c’est moi.)

The decision has also (predictably) been met with jubilation and glee by those who believe (or claim to believe) that the promised land of peace, economic and social equality and freedom for all can only be reached by destroying the judiciary and establishing a political system that grants unbridled power to a favoured political elite who view law, facts and reasoned argument as their mortal enemy.

This is an elite whose members promise to wield (what would be close to absolute) political power for the benefit of the powerless and the downtrodden and against real and perceived enemies of “the people” (read “corrupt elites”), despite them (most notably Zuma) having previously wielded their political power largely for their own benefit and for the benefit of a crooked Indian family and various capitalist benefactors who bankrolled their political careers and lavish lifestyles.

So it goes.

It is therefore not surprising that Freedom Under Law, which has worked tirelessly to ensure that Hlophe is held to account for the acts of alleged gross misconduct committed by him over many years, announced earlier this week that it would approach the high court to review and set aside the National Assembly’s decision.

Freedom Under Law and several other civil society groups and legal commentators argue that the National Assembly’s endorsement of Hlophe’s nomination was irrational and thus unconstitutional and invalid, not least because it is likely to undermine public confidence in the judicial appointments process.

There is no doubt in my mind that Hlophe’s participation in the selection of judges will further taint the JSC and will thus undermine public confidence in the appointment of judges, and the judiciary more broadly. It may also dissuade prospective applicants for judicial office (and for judicial promotion) from putting their names forward for fear of being subjected to character assassination by a commissioner who has in the past often launched scathing but entirely unsubstantiated claims about fellow judges, including against the most senior black judges in South Africa.

I am reminded here of the Judicial Conduct Tribunal ruling which found Hlophe guilty of gross misconduct, which held that it had a duty “to vindicate the integrity of the justices of the Constitutional Court, in particular Chief Justice Langa, Deputy Chief Justice Moseneke, Justice Nkabinde and Justice Jafta, whose integrity has been called into question by Judge President Hlophe’s unfounded and scurrilous attacks. They acted with honour to protect the institutional integrity of the apex court of our Republic.”

Despite these concerns, I am not as sure as some other legal observers are that a court will nullify (or even ought to nullify) the National Assembly’s decision to endorse Hlophe’s nomination to the JSC. While the argument that the decision of the National Assembly (but not MK) was irrational is legally entirely plausible, I am not sure that the problem is, at its heart, a legal problem that a court is best placed (or able) to fix.

One cannot escape the fact that our system provides for substantial representation of elected politicians and politically appointed individuals on the JSC. This includes the six members designated by the National Assembly, four members from the National Council of Provinces (NCOP), the minister of justice and four individuals appointed by the President.

As I have argued before, the political appointees on the JSC serve an important purpose, injecting “a democratic element into the selection process, thus minimising the risk of creating a judiciary completely out of touch with democratic sentiment and/or a judiciary actively working to undermine the elected branches of government”.

The six MPs and four NCOP delegates serving on the JSC represent the interests and ideological views of their political parties and (at least in theory) of those citizens whose votes got them into office.

When a political party (be it the DA, ANC, EFF or MK) is allocated a position on the JSC, it will obviously nominate somebody whom they believe will best represent the party’s interests and point of view. When it is prevented from doing so, it short-changes citizens who voted for that party and may well have done so in the case of MK because of its willingness, metaphorically speaking, to burn the house down.

What the MK party did when it nominated Hlophe as its representative on the JSC was to give its voters (and its leader) what they wanted: defiance, contempt and chaos. I would argue that a major reason for the existence of MK is as a vehicle for its leader, Zuma, to exact revenge against his enemies and to advance his campaign of delegitimising the judiciary and subverting the Constitution and the rule of law. The nomination by MK was therefore not only politically astute, it was (from an MK perspective) also entirely rational.

It is obvious that no court order will bring an end to the campaign by Zuma and his MK proxies to undermine and delegitimise the judiciary. It will continue whether Hlophe serves on the JSC or not, for as long as the party’s message finds favour with voters. And this is the uncomfortable thing about democracy — if you win enough votes, you get to have a say, even if what you have to say is idiotic and dangerous.

The party in whose name this is being done received 15% of the vote in the recent election, which means it represents a significant constituency who are entitled to have their views represented at the JSC by an MP the party believes will be most effective in advancing its cause, including delegitimising the judiciary and the legal system.

This does not mean that courts should not invalidate unconstitutional decisions. So when critics argue that it was the National Assembly (not MK) which acted irrationally when the majority failed to use their power to veto Hlophe’s nomination, it is worth considering the strength of the legal argument.

To determine whether a decision was rational in the constitutional law sense, we have to ask whether the impugned decision was rationally related to the purpose for which the power was conferred.

The pivotal question in this case will therefore be what purpose is being served by the provision that empowers the National Assembly to designate six of its MPs as members of the JSC.

I would argue that the purpose is to ensure that the sociopolitical views and other major concerns of citizens (as reflected by the elected representatives of political parties with substantial electoral support) are represented on the JSC when it selects candidates for appointment as judges. This is why political parties entitled to representation on the JSC get to choose which of its MPs should take up the party’s seat on the JSC.

Others may well argue that when the National Assembly designates six of its members to serve on the JSC the purpose is (or should be) “to assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts”. This obligation is imposed on all organs of state, including the National Assembly and the JSC in terms of section 165(4) of the Constitution.

If this is correct, Freedom Under Law’s review application may well succeed. I would therefore not be shocked the decision is reviewed and set aside. While I would be delighted with such an outcome, I would nevertheless be worried about the precedent set by it.

I worry that such a decision could undermine the purpose served by political party representation on the JSC and might later be abused by the majority in the National Assembly to prevent “difficult” MPs nominated by opposition parties from serving on the JSC.

What criteria will future members of the National Assembly use to decide that a party’s JSC nomination to sit on the JSC should be vetoed? If it is indeed necessary to block some MPs from serving on the JSC, the very least that would be required would be a clear rule empowering the National Assembly to veto a nomination but limiting this power to a narrowly defined set of cases, such as where a nominee has been impeached or found not to be fit and proper by a court or other tribunal.

However, I believe there is a better and more democratic way to deal with the problem. In a constitutional democracy such as ours, almost anyone can (rightly) be elected to the National Assembly, no matter how morally corrupt or dishonest they are. It is obvious to me that the best way to deal with the nomination of an MP who is not fit and proper to serve on the JSC is not to ban the individual from doing so, but to fix the JSC instead.

In the past, JSC interviews with candidates vying for judicial office have often been used and abused by individual commissioners to destroy the reputation of individual candidates, to advance some or other conspiracy theory, or to fan the flames or exploit some or other societal grievance.

The system will never be perfect — no system involving politicians could ever be — but it could be radically improved if the JSC developed and adopted a code of conduct which was made binding on commissioners and which provided for the imposition of sanctions for breaches of it.

To be clear, it would be a mistake to prevent JSC commissioners from posing politically laden questions to candidates. I also have no problem with commissioners making clear what their ideological point of departure is.

What I have in mind is a code that prohibits commissioners from making false or unsubstantiated allegations about candidates or anyone else, from asking questions about cases or judgments they have an interest in, or taking part in interviews for appointments when they have been one of the litigants in a case presided over by one of the candidates vying for the position.

The chairing of JSC interviews has also been a consistent problem, at least since Mogoeng Mogoeng’s time as Chief Justice and needs to be addressed. At the very least, the JSC needs to adopt basic rules to empower the chair to take action to protect the dignity of applicants and decorum of the proceedings, and to require the chair to adhere to basic rules about time management, fairness and the need for circumspection.

But even if we fix the JSC, the dysfunctional brand of politics at the heart of the current controversy will not go away.

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