Presidency correct but misses the point on Chief Justice

The Presidency today issued a statement “correcting inaccuracies” it perceived to have been perpetrated in the debate on the appointment of a new Chief Justice. The statement correctly points out that in terms of our Constitution, the President has a very wide discretion when he decides to appoint a Chief Justice and points out that:

In terms of section 174(1) of the Constitution of the Republic of South Africa, 1996, any appropriately qualified woman or man who is a fit and proper person, and is a South African citizen, may be appointed as a judicial officer. In addition, at all times, at least four members of the Constitutional Court must be persons who were judges at the time they were appointed to the Constitutional Court. The four must have been judges and not judges of the Constitutional Court per se. Therefore, Constitutional Court experience is not a criterion for appointment. By implication it is not necessary that  persons appointed as Constitutional Court judges should have been judges before appointment. They could have been legal academics, advocates, attorneys or directors of NGO’s.

I have made similar points in previous Blog posts and in commentary in the media. Of course, whether the constitutional provision invoked is one that may have to be revisited is another matter. Would it not be more in line with a system of checks and balances if the President is required to nominate, say, three candidates as possible appointees and requiring the Judicial Service Commission (JSC) to provide their views on these candidates with a view of advising the President on whether one or more of the preferred candidates are suitable for appointment? There is nothing stopping the President from following this route, but the fact that he has chosen not to follow this route is not in itself constitutionally problematic. Unless the Constitution is changed, the appointment remains the prerogative of the President.

The Presidency also pointed out that experience and seniority is not a requirement for appointment. That is why I did not mention the relatively thin judicial record of Justice Mogoeng Mogoeng when I criticised his “nomination” as Chief Justice. But these corrections are really beside the point. The question is not whether the President is entitled to appoint somebody like his preferred nominee as Chief Justice despite his relatively undistinguished career and his inexperience with constitutional matters.

The question is whether this appointment is a wise one, one that will enhance public confidence in the judiciary. Such an appointment can only enhance public confidence in the judiciary if the selected jurist has the requisite stature and the proven judicial temperament that would allow society as a whole to support the appointment — even where they do not necessarily agree with all the judgments of the candidate or even with the political orientation of the candidate.

In our system, political considerations will necessarily play a role in the selection of a Chief Justice. The President would surely be misguided if he appointed a jurist with whose views he and his party sharply differed. That is why no one would suggest, for example, that the President should appoint Deputy President of the SCA, Judge Louis Harms, as Chief Justice.

But for a decision to be wise and broadly acceptable to the public — by which I do not mean merely members of the opposition parties and the print media, but also members of the legal fraternity, ANC and alliance leaders and informed ordinary voters — the President should ideally appoint a credible candidate, one whose judicial temperament has not been questioned because of questionable judicial decisions which have nothing to do with the outcome of a case.

That is why I pointed out yesterday that the lapses of Justice Mogoeng Mogoeng in this regard — both as Judge President and as Constitutional Court judge — are something to be worried about.

Ideally such a candidate should also have demonstrated that despite the fact that his or her judicial philosophy is broadly in line with that of the ruling party, the candidate also embraces the progressive values embodied in the Constitution. Where a candidate’s judicial pronouncements have placed a question mark over whether he or she has embraced the values of respect for diversity, for democratic debate, for the dignity of all people, then such a decision will not be a wise decision. A President who “nominates” such a candidate should then expect to be confronted with strong criticism about his choice.

The statement of the Presidency fails to engage with these substantive issues, choosing instead to focus on procedural matters which are not really relevant to the debate at all. This is excellent spin doctoring but it does not make for reasoned and considered debate on whether the President’s preferred choice as Chief Justice is one that the society as a whole should support or should oppose.

My post yesterday attempted to demonstrate — with reference to the words and deeds of the nominee — that there are indeed serious questions about the wisdom of this decision. This is enhanced by the fact that the decision was made by the leader of the ANC, an organisation which professes to embrace the progressive values enshrined in the Constitution.

To this I can add the fact that I was reminded this morning that during his interview for appointment to the Constitutional Court the candidate indicated that one way to enhance access to justice for ordinary citizens — something that does need serious attention — traditional courts, presumably staffed by traditional leaders, should be resurrected and promoted. If the candidate still holds this view, it should make a chill run down the spine of any women living in a rural area who might be subjected to the rulings of patriarchal chiefs who, more often than not, have not embraced the idea that women have equal rights with men in our society.

I therefore maintain that while the appointment would be constitutionally permissible, it would be extremely unwise and that progressive forces inside and outside the ANC should say so and should try and persuade the President to change his mind and to appoint a more distinguished jurist with values more in line with the progressive values of the governing party as our new Chief Justice.

The JSC can also play an important role in this regard by carefully considering the rather undistinguished credentials of the “nominee”, along with his various ethical lapses, to decide whether it should advise the President not to appoint the candidate which the President has indicated he favours.

That is really the debate we should be having — not on whether the nominee has served on the bench for a longer period than other appointees to the position.

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