The qualities expected of candidates for judicial office
In the interests of openness and transparency, the Judicial Service Commission took an unusual step on 15 September 2010. It published a press release listing the qualities it expects of those it recommends for appointment as judges. The Chief Justice, who chairs the JSC, followed up by alluding to the topic in a lecture at UCT on "Public Confidence in the Judiciary".The Constitution itself is terse on the qualities of judges: any appropriately qualified person who is a fit and proper person may be so appointed. The need for the judiciary to reflect broadly the racial and gender composition of the country "must be considered when judicial officers are appointed".
This latter requirement has been elevated by the JSC to its posing the criterion: "Would the appointment help to reflect the racial and gender composition of SA?" How SA is ever going to be able to achieve our non-racial and non-sexist foundational values by so elevating issues of race and gender, is not clear. It seems that the JSC is still not ready to transcend the transformational imperatives that have so bedevilled the transition to constitutional democracy started over twenty years ago. The mutation of a constitutional requirement that no more than "consideration" be given to the need to have a judiciary that broadly reflects the race and gender composition of SA into the question now posed by the JSC is unfortunate. It indicates that racial and gender bean counting is still the order of the day. Our national non-racial, non-sexist aspirations will have to wait for some hallowed, but unspecified, future time when the nation, and the JSC, want judges truly worthy of their station in life; irrespective of their colour and gender. It is axiomatic that only when we become colour and gender blind as a nation will we have attained the non-racial and non-sexist values that the founders of the new order put in prospect by basing the new SA on this lofty ethos, one in which merit rather than race or gender is the operative criterion.
The additional, non-constitutional criteria set out by the JSC for public consumption are also not without their controversial aspects. It is hard to cavil at integrity, energy, motivation, competence (both technically and in terms of giving expression to our Constitution) and technical experience. These put meat on the constitutional bones. But what is meant by experience "in regard to the values and needs of the community" and whom does this "community" comprise?
The Constitution itself insists that "the courts are independent and subject only to the Constitution and the law." Furthermore no person or organ of state may interfere with the functioning of the courts. To emphasise these requirements, the Constitution also requires organs of state (like the JSC) to "assist and protect the courts and to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts". Precisely where experience in regard to the values and needs of "the community" fit into this constitutional scheme is hard to fathom. It is possible that the idea of "responsiveness" as it is used in section 1 of the Constitution may have informed the decision of the JSC to bring "the community" into its criteria. Unfortunately, the context is against any such interpretation. Our state is founded, inter alia, upon the values of "a multi-party system of democratic government, to ensure accountability, responsiveness and openness". This is a reference to government, not judges, being responsive to the needs of the people. The values that guide the Courts are set out in the Constitution and the laws. If the intention was to refer to the nation, united in its diversity, or simply to the public, then the JSC would have been well advised to steer clear of so loaded a concept as "the community". For example, it is notorious that most "communities" favour the death penalty and are decidedly homo-phobic. The Constitution, on the other hand, accords respect to the right to life and to live that life according to the sexual orientation of one's choice. The courts have interpreted these rights in such a way that convicted murderers no longer face the death penalty and gay persons are treated as the equals of heterosexuals, so much so that they can marry and adopt children.
The second time that "the community" features in the JSC criteria is under the heading "Symbolism" where the question is: "What message is given to the community at large by a particular appointment?" It is not clear whether "the community at large" is different to "the community" of which aspirant judges are supposed to have experience. What are those who do not regard themselves as part of the community to make of the community based criteria? Are these criteria included because of populist pressure?
Why judicial appointments should have symbolic value at all, is also not apparent. Judges are not in a popularity contest, nor are they elected. They are accountable to be accessible, efficient, reasonable and answerable only to the law and the Constitution. If they misbehave the JSC has the power to exercise discipline over them.
Retired Judge Albie Sachs warns against succumbing to populist pressure while on the Bench. In his celebrated memoir "The Strange Alchemy of Life and Law" he writes:
"It is precisely in situations where political leaders may have difficulty withstanding constitutionally undue populist pressure, and where human dignity is most at risk, that it becomes an advantage that judges are not accountable to the electorate. It is in these moments that the judicial function expresses itself in its purest form. Judges, able to rely on the independence guaranteed to them by the Constitution, ensure that justice as constitutionally envisaged is done to all, without fear, favour or prejudice. In securing protection of the rights of particularly vulnerable groups, courts will be guided by values rooted in the text and spirit of the Constitution."
In these circumstances, it is only the legitimacy of the Bench, the confidence that the public reposes in it, that can have any relevance to the two criteria relating to "the community" and "the community at large". The way in which the Bench is best able to earn legitimacy in the eyes of the people who rely on it for protection of their rights and interests is for the Bench to fulfil its functions even-handedly, efficiently and effectively. Postponements, delays and disgracefully long waiting periods for judgments undermine public confidence in judges and the administration of justice. Delivering the first Claude Leon lecture at UCT on 16 September 2010 the Chief Justice, Sandile Ngcobo, announced that it is the intention of the JSC to take disciplinary steps against judges who delay handing down judgments unduly. This is a salutary and welcome step.
The only other criterion that calls for comment is the notion that candidates should possess "appropriate potential". By this, the Chief Justice explained, is meant ability to grow. This is a risky business â€" the litigating public would surely prefer that judges do not do their "growing" at the expense of the unfortunate litigants who cross their paths during the "growth phase" of their judicial development. Far rather choose fully grown judges, because judges who do not fulfil their "potential" undermine confidence and are burdensome to the system, as bitter experience reveals.
The JSC members should think of candidates for judicial office as brain surgeons who will potentially soon be operating on their loved ones. A Bench composed entirely of such persons, irrespective of their race or gender, will enjoy the confidence of the public and help build a non-racist, non-sexist country.
Paul Hoffman SC
21st September, 2010
