ANC to examine criteria for Judges
It was reported on Sunday, 5 March 2017, that the ANC wants its deployees on the Judicial Service Commission (JSC) to re-look at the “appointment criteria” used to decide who becomes a judge. In discussion documents, which have now been made public, the party is reported to want; “judges with a progressive philosophy and who advance judicial activism to give effect to social transformation to be appointed to the Bench”.
This is a significant change in current policy. The most prevalent question in the JSC about judicial philosophy has been what candidates understand by the separation of powers.
One successful candidate said as follows:
There are three branches of government: the Legislative, Executive, and Judiciary. The Legislature promulgates the rule of law, the Executive enforces the law, and the Judiciary oversees that the laws and the execution of the laws is in line with the Constitution. It is a principle entrenched in our Constitution, which makes a clear distinction between the three functions of government (the legislature, executive and judiciary), supported by a system of checks and balances to ensure accountability and that no arm of government abuses its power.
This may be correct, but the question is of course not about the textbook answer on what the separation of powers means. The question is actually a kind of dog whistle politics. Dog-whistle politics is political messaging employing coded language that appears to mean one thing to the general population but has an additional, different or more specific resonance for a targeted subgroup.
So, what the question actually asks is – will you, as a judge, stay in your own domain, and not challenge the power of the executive? As we have said before the safe answer is that you, as the candidate, very much support the separation of powers. The politicians fondly imagine that this means that you will be a deferential judge, and not keep telling the Executive what to do.
This report suggest a departure from that approach on the part of the JSC. It suggests the members of the committee will reconsider the appointments criteria.
For the JSC to appoint a person, they must have the following criteria in terms of section 174 (1)&(2) of the Constitution:
- They must be appropriately qualified;
- They must be a fit and proper person; and
- They must consider the need for the judiciary to reflect broadly the racial and gender composition of South Africa.
There are no other legislated guidelines. In 1998 the late Chief Justice Ismail Mohamed introduced guidelines (the Mohamed guidelines). These suggested that in elaboration of the first three:
- The applicant had to be a person of integrity;
- A person with the necessary energy and motivation;
- A competent person, both technically as a lawyer, and with respect to the capacity and ability to give expression to the values in the constitution;
- An experienced person, both technically, with the capacity and ability to give expression to the values in the constitution;
- A person with appropriate potential, so that any lack of technical experience could be made up by intensive training; and
- Whether the applicant’s appointment would be symbolic in sending a message to the community at large.
According to Advocate Milton Seligson, SC; “An important requirement developed by the Commission is that an applicant must have acted as a judge in that court, and delivered a satisfactory level of performance, measured both qualitatively with reference to judgments delivered, and the comments of the permanent judges who have worked with the candidate, and in terms of the level of diligence displayed in producing judgments, and not having delayed unduly in handing down reserved judgments.”
The JSC itself has elaborated the important criteria as the Ngcobo guidelines which include:
- The recommendation of the Judge President;
- The support of the candidate’s professional body;
- The need to fulfill the constitutional mandate around transformation so as to reflect the ethnic and gender composition of the population;
- The judicial needs of the division concerned;
- The candidate’s age and experience, including whether they have served as an acting judge in that division;
- The relative merits and strengths of the candidates in relation to one another.
A new set of criteria might well be introduced, which would involve the actual judicial philosophy of the candidate. It would not be in the constitution or law, but some criteria adopted by the JSC. However, the JSC at this stage barely has the time to gather the most basic information about candidates. They get only three of the candidate’s judgements in their application form, and receive a bundle of excerpts of judgements in the week before the hearings. Many members of the JSC do not then have time to read 100 pages or more of case law in the time they have. How will the current process allow for a more thorough process of engaging with candidate’s jurisprudential philosophy?
Such a philosophy must of course then align with the constitution. This suggestion of a complete reversal of the current approach of the ANC, seeking to identify progressive judges, rather than executive minded judges, is interesting, but will be difficult to execute.
Read more about this here:
[PAYWALL] Sunday Times: ANC pushes for its kind of judges
Daily Maverick: Analysis: Is Zuma/ANC starting a battle for the soul of SA judiciary?
ANC National Policy Document: Discussion Document – Peace & Stability (refer to page 17: Transformation of the Judiciary and the legal sector).