Judicial independence imperilled

Editorial

Summary - Post-apartheid South Africa is a constitutional democracy. Consequently legislation emanating from parliament and actions undertaken by the executive have to comply with the constitution.

Without an independent judiciary to ensure compliance with the constitution, even a highly commendable constitution can degenerate into a fine-sounding but meaningless document. For that reason any threat to judicial independence, however small it might seem and however plausible government protestations of innocence might sound, should be treated seriously. The stakes are so high that constant vigilance against threats to judicial independence is imperative.

Signs of ANC disquiet over judicial independence have manifested themselves on several occasions over the past few years. The most recent pointer to ANC ambitions to reorient the judiciary is contained in a series of bills designed to subject judges to a statutorily imposed code of conduct, statutory tribunals, in whose composition the minister of justice will have a joint say with the chief justice, and a national justice training college operating under the aegis of the department of justice. But perhaps more important than all these proposed changes is one which requires a constitutional amendment. While confirming the chief justice’s responsibility for the “judicial functions of all courts”, the proposed amendment states that the minister of justice has “final responsibility over the administrative functions, including the budget, of all courts”.

The retiring chief justice, Arthur Chaskalson, has made a central interrelated point: while the judges present at a colloquium on the proposals supported the establishment of an institution for judicial education, as well as legislation for the provision of a formal complaints system and the rationalisation of the superior courts, they raised concerns about provisions in the draft legislation that they adjudged to be inconsistent with the separation of powers and judicial independence.

Chaskalson is a man who eschews hyperbole. His statement about concern within the judiciary over contravention of the separation of powers doctrine and erosion of judicial independence should thus sound alarm bells, the anodyne assurances of Justice Minister Brigitte Mabandla and her deputy Johnny de Lange notwithstanding.

Post-apartheid South Africa is described, correctly, as a non-racial democracy. Another label is equally apt, however. It is a constitutional democracy. Its founding constitution is the supreme law. Consequently legislation emanating from parliament and actions undertaken by the executive have to comply with the constitution.

A carefully drafted constitution is a necessary but not a sufficient condition for constitutional democracy to take root. An independent judiciary in general, and an independent constitutional court in particular, are indispensable to its growth.

There are sound reasons for suspecting that the African National Congress-led government is not averse to a phased assault on, or an incremental dismantling of, judicial independence, in part because it is piqued at having been thwarted on several occasions by the judiciary, most notably when the Supreme Court of Appeal upheld an appeal against the legality of the department of health’s medicine pricing regulations.

Signs of ANC disquiet over judicial independence have manifested themselves on several occasions over the past few years. They should be recalled every time a government minister crosses his or her heart and swears allegiance to the notion of judicial independence.

Perhaps the clearest of these signs is contained in an article in the ANC journal Umrabulo, in which Joel Netshitenzhe, a senior ANC theorist, identified one of the hallmarks of transformation as the extension of the power of the national liberation movement (read ANC) over all the levers of power, including the judiciary. Another prominent sign is the now celebrated ANC anniversary statement of 8 January 2005 on the need to transform the “collective mindset of the judiciary” to bring it into line with the “aspirations of the millions who engaged in the struggle to liberate our country from white minority domination”.

The most recent pointer to ANC ambitions to reorient the judiciary is contained in a series of bills designed to subject judges to a statutory imposed code of conduct, statutory tribunals, in whose composition the minister of justice will have a joint say with the chief justice, and a national justice training college operating under the aegis of the department of justice. But perhaps more important than all these proposed changes is one which requires a constitutional amendment. While confirming the chief justice’s responsibility for the “judicial functions of all courts”, the proposed amendment states that the minister of justice has “final responsibility over the administrative functions, including the budget, of all courts”.

In a statement issued after the April colloquium on the proposed changes which was attended by government and judicial representatives, the retiring chief justice, Arthur Chaskalson, makes a central interrelated point: while the judges present supported the establishment of an institution for judicial education, as well as legislation for the provision of a formal complaints system and the rationalisation of the superior courts, they raised concerns about provisions in the draft legislation that they adjudged to be inconsistent with the separation of powers and judicial independence.

Geography and history serve as reminders of the need for vigilance. Africa is a continent in which newly independent states have, in many cases, failed to protect judicial independence, to their detriment and that of their citizens. South Africa is a country where the previous white minority government packed the supreme court with politically compliant judges to subvert it from within and obtain judicial approval of its legislative chicanery to remove coloured voters from the common roll.