Illustrative image | Sources: Daily Maverick / Leila Dougan
The Judicial Service Commission will be conducting interviews over the next few weeks to appoint at least four constitutional judges as well as candidates for appointment to other higher courts.
Casac, freedom of law and judicial matter
The Judicial Service Commission (JSC) has recently been the focus of legitimate criticism that a constitutional challenge to the interview round in April led to the JSC’s shameful surrender without an oral hearing.
In this case, the Council for the Advancement of the South African Constitution (Casac) argued that the manner in which some members of the JSC behaved during public interviews with candidates for judicial office, as well as the manner in which which characterized their discussions about the candidates, made their recommendations irrational. Unfortunately, such outlandish behavior was not confined to the partisan members of the JSC; in fact, some of the most obnoxious interventions came from the legal profession.
In general, how has the JSC fared in its important role in appointing judges? Despite some controversial moments and some blatant and inexplicable anomalies, most would agree that it did a reasonable job of executing its appointment mandate until recently. In particular, the JSC has vigorously promoted demographic change in judicial authorities by fulfilling its constitutional obligation to appoint “any suitably qualified woman or man who is a suitable and appropriate person” while at the same time “[considering] the need for the judiciary to largely reflect the racial and gender makeup of the South African population.
The JSC had already ensured in 2013 that more than 60% of our judges were black and over 30% women; although management positions were still almost exclusively occupied by men. An important contribution to this radical, but overdue and well-justified “recomposition” of the bank was the expansion of the pool from which judges were appointed to include lawyers, legal scholars and judges.
What criteria does the JSC use to make its decisions? In addition to the constitutional provisions set out above, three attempts have been made to interpret these requirements in the context of the administration of justice and the practice and ethics of the legal profession in this country. When the JSC recommended the appointment of judges to the First Constitutional Court in 1994, the following features were highlighted:
- Independence, open-mindedness, integrity and courage;
- Diversity, empathy and sensitivity;
- Fairness, judgment and discernment; and
- Perseverance and industry; and heated internal debates.
In April 2009 the following statement was made on behalf of the JSC:
“There are a variety of factors that the Examination Board considers before deciding whether to accept or exclude a particular candidate. These include, but are not limited to, the presidential judge’s recommendation, the support of the candidate’s professional body, the need to fulfill the constitutional mandate … including whether he / she has served as an acting judge in the Chamber or at all, and the relative Strengths and merits of the various candidates in relation to one another. “
Chief Justice Ismail Mahomed’s 1998 guidelines for appointment were subsequently incorporated into an official proclamation during Chief Justice Sandile Ngcobo’s tenure as Chair of the JSC:
AAt its special meeting in Johannesburg on September 10, 2010, the Judicial Service Commission decided…. publish the criteria used in considering candidates for appointment as judge. This decision is in line with the JSC’s principle that the process of appointing judges should be open and transparent to the public in order to increase public confidence in the judiciary.
TThe following criteria will be used in interviews with applicants and in assessing the committee members’ deliberations:
C.criteria set out in the constitution
- Is the applicant a suitably qualified person?
- Is he or she a fit and right person and
- Would his appointment help reflect the racial and gender makeup of South Africa?
- Is the proposed person a person of integrity?
- Is the suggested person someone with the necessary energy and motivation?
- Is the suggested person a competent person?
(a) Professionally competent
(b) Ability to express the values of the Constitution
- Is the suggested person an experienced person?
(a) Technically experienced
(b) Experience of community values and needs
- Does the proposed person have the appropriate potential?
- Symbolism. What message is conveyed to the general public by a certain date?
What does it mean to be “appropriately qualified” and “fit and right”? A decade ago, Cowen argued that “appropriately qualified” forensic skills, intellectual skills, writing and analytical skills, knowledge of law and court processes, language skills, the ability to work hard, the ability to run a courtroom, and a variety of work experience. It’s hard to contradict these requirements.
There is also general consensus that a “suitable and suitable” candidate for judicial appointment requires at least the following:
- A demonstrated commitment to independence (from both party political and personal interests), fairness and impartiality;
- An undisputed proof of professional and personal integrity;
- A judicial temperament (including a degree of humility, courtesy, self-control, determination, and collegiality); and
- A firm commitment to the values of the Constitution (including the right to dignity, equality and freedom, respect for diversity, a measure of compassion and empathy, critical respect for the separation of powers, and commitment to the transformative goals of the Constitution).
Some may also expect prospective judges to have some understanding of the theories of case law, especially as the JSC now appears to have raised the service of “acting judge” to the level of a criterion.
As far as the constitutional imperative for the demographic change of the judiciary is concerned, this seems to be expressed in the previous practice of the JSC only in the number of appointed judges or black judges. It is imperative that this requirement also include the candidates’ legal philosophy and life experience to ensure that all appointed individuals are committed to socio-economic change and justice.
Aside from the criteria by which candidates should be judged, a fair and transparent process is essential for public confidence in the appointment of judges. This means that interview questions must be linked directly and clearly to the criteria listed above. In addition, the JSC should ensure that each candidate is treated broadly similarly, particularly with regard to the length of the interview and the equivalence of the survey. In this regard, the role of the Chief Justice as chairman of the JSC is vital; one reason the JSC agreed to repeat the April interviews for Constitutional Court vacancies must be failures in that regard. In addition, the need to justify the JSC’s recommendations requires a reasonable level of fairness in considering each candidate and rational justification for decisions. The minutes of the April deliberations also failed this test of minimal fairness.
The JSC will be conducting interviews over the next few weeks for the appointment of at least four judges to the Constitutional Court, as well as candidates for appointment to other higher courts. Candidates for Chief Justice will also be interviewed in a separate process, with additional criteria. Compliance with the highest standards of respectful professionalism and fairness should be required of every commissioner. DM