Debating the Transformation of the Judiciary (cont.)
Judge Dennis Davis usually runs a tight ship during his half hour "You be the judge" slot on the etv news channel. His encounter with parliamentarians Ryan Coetzee and Mathole Motshekga to debate the future of the judiciary is the first discussion of its kind during the Zuma presidency and it did not measure up to the usual high standard of the programme.
It is clear that the ANC is pursuing an agenda intended to "transform" the judiciary. There is a Polokwane resolution admonishing its Members of Parliament to get on with its transformation plans during the last Parliament. They did not do so, apparently as the dissolution of the Scorpions seemed to have absorbed all the time and energy available to the committees concerned. Indeed, since the withdrawal of the 2005 judiciary bills in mid 2006 against a promise of a white paper instead, little has been achieved to reform the judiciary and no white paper has seen the light of day.
Debating as complex a topic as the transformation of the judiciary in half an hour on a talk show is perhaps too ambitious a project, but, in the debate conducted by the two politicians who were the learned judge’s guests, far too much of the basic factual matrix was lost in the heat and dust. In the interests of preliminary enlightenment on this important topic, let’s get back to the basics overlooked and obscured in the televised battle.
The Constitution envisages an independent judiciary "subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice." [s 165(1)]. Organs of state must assist and protect the courts to ensure "the independence, impartiality, dignity, accessibility and effectiveness of the courts". [s 165(4)]. Nobody may interfere with the functioning of the courts. [s 165(3)]. The judicial authority vests in the courts [s 165(1)] which function as the chief bulwark against the abuse of power. This is because any law or conduct which is inconsistent with the Constitution may be declared invalid by the Courts [s 2]. The Constitution, in the final analysis, means what the Courts say it means. In this way the power of the executive and legislature is checked and balanced by the deferential but ultimate rulings of the Constitutional Court. There is a well entrenched separation of powers between the Courts and the other spheres of government and orders of Court bind all to whom they apply. [s 165(5)].
The only reference to the "transformation" of the judiciary contained in the Constitution itself is its acknowledgement of the need for the judiciary to reflect broadly the racial and gender composition of the country and for this to be considered when judicial officers are appointed. [s 174(2)]. Judicial officers have to be appropriately qualified "fit and proper person(s)". [s 174(1)]. A Judicial Service Commission sifts and recommends applicants for judicial office [s 178].
As Judge Davis was at pains to point out, great strides have been made towards meeting the legitimacy considerations mentioned in s 174(2) especially as regards race, less so, due to a paucity of applicants, as regards gender. Why then the resolution to promote the "transformation of the judiciary" taken at Polokwane? This is best answered by examining the language of the resolution itself. The "transformation" is apparently aimed at making the judiciary "more responsive to the aspirations of the people". Judge Davis quoted an earlier formulation of this requirement, dating back to 2005, in which responsiveness to the aspirations of "the masses" appeared. This was changed to "the people" after critics pointed out that not all of South Africa’s diverse population regards itself as part of "the masses". They raised questions as to where those who are not part of the masses would find themselves if the judiciary is transformed into an entity responsive only to the aspirations of the masses. This may be a distinction without a difference because responsiveness to either "the masses" or to "the people" is clearly at odds with the Constitution, which, as already noted, requires simply that the judiciary be subject to the law and the Constitution.
If laws are made that inspire and require this form of responsiveness, the courts can be relied upon to enforce them should people complain of lack of responsiveness on the part of those in authority. There is a foundational principle that responsiveness is one of the values of the Constitution. [s 1(d)]. This does not countenance or contemplate transforming the judiciary into some sort of agency for the people. It is an independent centre of power which remains beholden only to the law and the Constitution. It deals with disputes placed before it impartially by applying the laws that are germane to the issues in any case. The judiciary is not a pro-active entity, it exists to manage conflict between state and subject and between the people themselves. Litigants in a civil suit usually have diametrically opposed "aspirations" in any case brought to Court. Would a judiciary that is "responsive to the aspirations of the people" have to conduct surveys and polls to divine these "aspirations" accurately? Would it be obliged to reinstate the death penalty by popular demand and ignore the right to life guaranteed in the Constitution and affirmed in the seminal judgments of our highest Court? One would hope not.
Further clues as to the content of the transformation agenda are to be found in the withdrawn bills first seen in 2005. A concerted effort to take executive control of the judiciary is discernable in these bills. They drew unanimous criticism from all living Chief Justices before they were withdrawn in July 2006. The legal profession and academia joined the chorus of criticism of the measures which, if they had been enacted, would have severely diminished the vital capacity of the judiciary to function in the manner envisaged in the Constitution. In the absence of an independent judiciary the doctrine of the separation of powers becomes a dead letter and the maintenance of the rule of law is impossible. Instability follows and this has adverse implications for trade and investment relations and earns bad marks in the books of those tasked with the African Peer Review Mechanism. It is a regressive step to do anything that interferes with the functioning of the courts in any way which undermines their independence. It is for this reason that the activities of Cape Judge President John Hlophe were viewed so askance by his senior colleagues in the Constitutional Court.
Professor Motshekga should know that it won’t wash to equate "change" with "revolution". Likewise, any attempt to brand judges as "counter-revolutionaries" or "gods" is entirely counter-productive in any responsible debate about the transformation of the judiciary. There are indeed reforms that could be made to improve the effectiveness, dignity and accessibility of our Courts. This is not done by calling judges names. It is done by improving resources, facilities, training and systems in constitutionally compliant ways that are responsive to the needs of the people. It does not "assist and protect" the Courts to bad-mouth our judges. Let’s concentrate on the principles and values of the Constitution and hold up any "transformation" measures to constitutional scrutiny before proposing them. In this way constructive progress can be made. The alternative will be an unseemly clash between the judiciary and the executive. Everyone will lose.
Paul Hoffman SC