Why the JSC should consider the broad political orientation of candidates, but is doing so badly

Should political considerations play any role in the selection of judges for appointment to the various High Courts, the Supreme Court of Appeal and the Constitutional Court? Some critics of the Judicial Service Commission (JSC) seem to believe that it should not. But while much of the criticism of the JSC is valid, the belief that the JSC should not consider political considerations (broadly understood) when selecting judges, is misplaced.

Last week the Judicial Service Commission (JSC) agreed to rerun the process to nominate candidates for appointment to two vacancies on the Constitutional Court, following a court challenge by the Council for the Advancement of the SA Constitution (CASAC) after it emerged that the JSC failed to engage in any meaningful deliberation before rubber stamping a list of recommended candidates proposed by Chief Justice Mogoeng Mogoeng. The nomination of judges to other courts were not affected by this concession, despite the fact that the JSC failed to give all candidates a fair hearing during the interview process.

Nevertheless, in my view it would be a mistake to argue that these failures of the JSC would be rectified if the JSC were forced to “depoliticising” the interview and appointment process. I would argue that the composition of the JSC as set out in section 178 of the Constitution makes clear that the JSC was never intended to be completely a-political as the JSC consists of both representatives of the legal profession and of a sizeable number of politicians and political nominees.

The legal profession is represented by 8 Commissioners, including the Chief Justice, the President of the SCA, a nominated judge president, four representatives from professional bodies, and one law teacher. There are at least 11 politicians on the JSC with 8 of these parliamentarians from the governing party. These include the Minister of Justice, 6 members of the National Assembly (NA) (3 of them from opposition parties), and 4 members of the National Council of Provinces (NCOP).

To complicate matters further, another 4 Commissioners – usually also practicing lawyers – are appointed by the President after consulting the leaders of all parties in the NA. Two additional members – the Judge President of that Division and the Premier of the province concerned – serve on the JSC when it considers matters relating to a specific Division of the High Court.

In my view, the presence on the JSC of members of the NA and NCOP, and of the presidential appointees are important and necessary. (Whether it would address some of the problems if the number of these political appointees was reduced, is another matter.) In a constitutional democracy with a supreme Constitution, judges – especially judges of the Constitutional Court – wield enormous power, including the power to invalidate legislation and decisions taken by the President and other members of the executive. This raises the so called counter-majoritarian difficulty – the concerns that unelected judges undermine democracy when they invalidate decisions made by the two democratically elected or accountable branches of government.

The presence of politicians on the JSC does not resolve the dilemma, but it does address some of the concerns. Their participation in the appointment of judges enhances the democratic legitimacy of the judiciary as it injects a democratic element in 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. (It is for related reasons that the race and gender transformation of the judiciary remains an important factor that the JSC must consider when selecting candidates for appointment.)

This is important, especially for the long term survival of a Constitutional Court, as a politically isolated and unpopular Constitutional Court is unlikely to survive a head-on clash with a democratically popular government. The fate of the Hungarian Constitutional Court, who had its wings clipped in 2010 after the parliamentary elections resulted in a two-thirds majority for the right-wing governing party, enabling a complete overhaul of the Constitution, is a textbook example of this problem.

I therefore contend that it is unwise to try and insulate the appointment of judges completely from the democratic process. When this happens and judges are selected exclusively by other judges and/or by members of the legal profession, there is a danger  that the judiciary would become a self-perpetuating juristocracy.

But there is a second, more substantive, reason why, in a constitutional democracy with a supreme Constitution, political considerations (broadly understood) can and should play a role in the selection of judges – especially of judges serving on the Constitutional Court. I am not referring here to the party political views of judicial candidates, but to the values and attitudes, life experience, judicial philosophy, temperament, and ideological orientation of a candidate. The technical legal skills and legal knowledge of candidates also loom large. These are all factors likely to have an impact on the way in which a specific judge interprets and applies specific provisions of the Constitution (or other law).

It is true that some provisions of the Constitution are relatively clear and specific, and that this limits the discretion of judges when interpreting them and that all competent judges working within the same legal culture and acting in good faith are likely to interpret such provisions in the same manner – despite any ideological or other differences between them. But other provisions of the Constitution are couched in more general language and this means different judges will not always interpret these provisions in the same way.

At the very least, the broad political orientation and judicial philosophy of Constitutional Court justices are therefore likely to impact on what specific provisions of the Constitutions come to mean and how they are applied. (To simplify my argument, I deliberately limit my discussion to the interpretation of the constitutional text.)

This does not mean that judges are politicians when they interpret and apply the provisions of the Constitution, as they remain constrained by the text of the Constitution, the conventions of a particular legal culture about what would constitute a persuasive legal argument, and the binding precedent established by earlier court judgments.

Nevertheless, who gets appointed as judges – especially to the Constitutional Court –matters a great deal as different judges with different judicial philosophies and political orientations will sometimes interpret provisions of the Constitutions in different ways and would impact on different citizens who are differently situated because of their class, race, gender, language or any number of other factors in different ways. The problem with the way the JSC selects judges for nomination to the Constitutional Court and for appointment to other courts is therefore not primarily that it allows political considerations (broadly understood) to play a role in its decisions. The problem is much more complex because it is partly related to the attitudes and actions of individual Commissioners who serve on the JSC.

First, there is no evidence that the current JSC has ever reflected on and formalised the criteria to be used to select judges. In 2010 the JSC did publish a cryptic set of criteria to evaluate candidates for appointment, but I could find no evidence that the current JSC follow them. Apart from the pivotal constitutional requirement that the JSC should consider the “need for the judiciary to reflect broadly the racial and gender composition of South Africa”, there is little public evidence that members of the JSC use any criteria (other than their own personal feelings about candidates or a calculation on whether the appointment might advance their personal political or personal interests) to guide the process.

Second, while the JSC interviews have never been perfect, they have become more superficial and performative in recent years, often revealing little about a candidate’s broad political orientation and judicial philosophy. Perhaps part of the problem is that some Commissioners seem to lack sufficient knowledge and understanding of constitutional principles and the jurisprudence of the Constitutional Court, and struggle to probe candidates in ways that would reveal more about what kind of judge a candidate would be if appointed to the bench. Added to this is the tendency of some Commissioners to attack candidates on the some or other irrelevant ground, including that they ruled against a particular person in a particular case.

But some readers might feel I am being a bit unfair to JSC Commissioners, so let me provide an example of the kind of questions I think might help to reveal something important about the candidate’s philosophy. One of the most important questions in South African constitutional law at the moment is the extent to which private parties are bound by the rights in the Bill of Rights. Section 8(2) of the Constitution states that the rights in the Bill of Rights bind private parties “if, and to the extent that, it is applicable, taking into account the nature of the right and the nature of any duty imposed by the right”.

Over the past few years, the Constitutional Court engaged with this question several times, including in its 2017 judgment in Daniels v Scribante in which 5 different judgments were delivered, revealing philosophical differences between members of the court. I would find it very helpful to know where candidates for judicial appointment stand on this issue.

Candidates who embrace judicial modesty and believe that courts should be slow to interfere in relations between private parties, and that the private autonomy of businesses to make money should be sacrosanct, might interpret section 8(2) restrictively to ensure private parties are exempt from most obligation imposed by rights. Candidates who worry about the abuse of power by big corporations, and worry about the harm such parties can cause to marginalised and vulnerable groups, might go in the opposite direction.

The skilful and well-informed questioning of candidates by Commissioners on an issue like this, will reveal much more about the broad political orientation and judicial philosophy of a candidate, than questions aimed at humiliating a candidate for ruling for or against a specific politician in a specific case. The fact that this kind of questioning seldom take place, says more about the weaknesses and absence of good faith on the part of some JSC Commissioners, than it says about the composition of the JSC. Which means, the JSC is likely to continue stumbling along to the detriment of the judiciary and of citizens.

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