Now you cannot understand anything about fascist doctrine if you do not understand that their central claim was that liberalism is antidemocratic; in other words, the fascists claimed that liberal institutions cannot represent the will of the people. They further claimed that their typical institutions, particularly the party, were more effective means to represent the will of the people. So fascists were “authoritarian democrats.”
After reading the ANC Polokwane resolution on the transformation of the judiciary, I suddenly wonder whether I am not perhaps a legal snob. I even started wondering whether the Judicial Services Commission (JSC) is really as bad as I have made them out to be in previous posts on this Blog.
These thoughts came to me after my instinctive horrified reaction to the ANC proposal that the JSC and the Magistrates Commission (MC) should be integrated into a single appointment mechanism that would provide for a single grievance procedure for all judicial officers.
At present the Constitution provides for separate institutions dealings with the Judiciary and the Magistracy. There are historical reasons for treating the lower courts differently from the High Court. Until the early nineteen nineties Magistrates Courts were not in any way independent and Magistrates were civil servants accountable to the government of the day and it was felt that they could therefore not be treated the same as judges.
I can well imagine that many judges would feel deeply aggrieved by these proposals because of a certain snobbishness towards the Magistracy. They would object to being treated the same as Magistrates because they would see it as an attack on their status and independence.
I find myself largely in agreement with this view – and not (only) because I am a legal snob. There are many excellent Magistrates doing a brilliant job, but the fact of the matter is that the Magistracy has a lower status in our society than the judiciary and their independence is less vigorously protected than that of judges.
In the Van Rooyen case the Constitutional Court accepted this fact, saying that the Constitution provides for safeguards by allowing anyone to appeal to the High Courts, whose independence are more vigorously protected in the Constitution. The ANC proposal (do I see the jealous hand of Deputy Justice Minister Johnnie de Lange in all of this?) is problematic because it will be perceived as an attack on the status of the judiciary and will potentially undermine its independence.
Judges do not have an army or a police force to enforce its decisions. It forms part of a system in which it can act boldly and independently only if it feels confident that its decisions will be respected and followed. Judges are called upon to enforce the Constitution and can declare invalid any piece of legislation that does not conform to the Constitution. To exercise this enormous power, it needs to have the confidence that its status and legitimacy in the eyes of the public is such, that no government would refuse to obey its orders.
Judges therefore fulfill a fundamentally different function in our democracy from Magistrates, who do not have the power to review Parliamentary legislation or the actions of Ministers. By treating Magistrates and Judges as equal and pretending that they fulfill exactly the same function, one would be really attacking the independence of the judiciary by stealth.
It would be an attempt to water down the independence of the judiciary under the guise of creating a more egalitarian legal system. The JSC is not a perfect body and it has shown that it does not always act in the interest of the judiciary but I fear if its composition is changed fundamentally to accommodate the very different concerns and interest of the Magistracy, it would further water down the effectiveness of this body.
In the light of the insistence in the ANC proposal that the administration of courts, including any allocation of resources, financial management and policy matters relating to the administration of courts, should be “the ultimate responsibility of the Minister responsible for the administration of justice”, the suspicion that these proposals were drawn up as a way of watering down the independence of the pesky judiciary, will remain.
Judges have already expressed very strong objections to amending the Constitution to give the Minister final responsibility for the administration of courts, arguing that it fundamentally threatens the independence of the judiciary. Proposals to amalgamate the JSC and the MC must therefore be seen in this light and must worry all of us who value the independence of the judiciary.
This is not (only) about judicial snobbery – of which there is much in evidence when one hears judges speak about these matters. This is about the fundamental principle of safeguarding the Judiciary so that it will enforce the Constitution without fear favour or prejudice – something that the Johnnie de Lange’s of the world do not really like.BACK TO TOP