Judicial independence under serious siege

Summary - Government is in the process of consulting on four draft bills whose intention appears to be to “manage” the judiciary.

The tone used, the obsessive minutiae, the sense of every aspect of a judge’s life coming under the magnifying glass, all contribute to a new and alarming picture: that of a rather junior group of civil servants, unwilling to accept the discipline that the employer believes suitable for their station.

The proposed solution is partly micro-management; partly keeping everyone very busy indeed, and partly ensuring through early, radical and persistent dental work that potentially troublesome watchdog-type fangs are trained and tamed.

Two aspects of these drafts were raised with Judge Pius Langa in April when he appeared before the Judicial Service Commission.

He was asked how judicial education and training could be conducted in a way consistent with both the separation of powers and the need to sensitise the judiciary.

Judge Langa said much depended on who was giving it, and how it was being given:

“You want a judicial education imparted by the judiciary itself because you want an independent judiciary.”

Similarly, the chief justice-elect answered questions about how public complaints concerning judges should be handled. His preferred solution was, once again, a structure and a process that judges themselves controlled because this would ensure their independence.

In the past, courses for aspirant judges have been run with donor funding by the universities. When foreign funding for training judges ended, those most involved in judicial training began casting around for alternatives. The one favoured as the most financially efficient was for Justice College – which has long offered training for magistrates – to be made a statutory body, completely independent of government, but financially accountable to Parliament.

Plans for this radical restructuring were well under way. Then came new ministerial leadership and, with it, an about-turn, reflected in a draft bill. Judges are to undergo training at the college in its current guise as a government-owned, run and managed institution.

In the new Superior Courts Bill, the chief justice will become a kind of director general with new bureaucratic functions, for example telling judges to ‘furnish periodical returns of statistics relating to … aspects of the performance of their judicial duties’. There are clauses related to leave and recess and ‘research periods’, all laid down in extraordinary detail.

These provisions are insulting to dedicated professionals who have for decades taken home files every night, every weekend, and who spend non-official working hours going through these documents to prepare for the next court session. This preparation time is not considered in the draft bills.

Following a colloquium with governmental and judicial participants, the minister of justice has said the drafts will be reconsidered. But according to judges involved in the process, ministry officials have indicated that there is very little room for fundamental modification. They remain seriously concerned about the outcome of the conflict.

When the question came, it was from the mouth of none other than the Minister of Justice and Constitutional Development, Brigitte Mabandla, herself.

One of the most influential members of the Judicial Service Commission sitting in Cape Town during April, she had a couple of issues to canvass with the man certain to become the next Chief Justice of South Africa, Judge Pius Langa.

There was this view that the judiciary was under threat, she said, that its independence was at risk. Did he share this position?

This was perhaps the key interaction of the entire week — at least in terms of the future of the judiciary and the role that the new judicial leader would play in shaping that future.

No one could miss the significance of what she had asked. Mabandla had made sure of that, even prefacing it with the remark, “I am going to ask you questions like a politician”. Could Judge Langa, no slouch at decoding the refined nuances of politically-charged conversation, match her in this duel?

Eyes moved from the minister at one end of the long room, to the candidate at the opposite extreme seated behind his microphone and glass of water. How would he field this question?

He answered the crucial section twice, as part of a longer, more broad-ranging answer, but saying essentially the same thing both times.

First, he claimed legitimacy for his understanding of the concept of judicial independence, by sourcing it in the Constitution.

“I have a particular understanding of the independence of the judiciary that accords with Chapter Eight of the Constitution,” he began.

“I do not know if there is a common understanding of [judicial independence]”, he commented, in answer to a part of the Minister’s question. “Do I perceive it to be under threat?”

“I know that what is involved in the question may be certain criticisms of judges coming from members of society, especially powerful people, members of Parliament and the executive.”

Then he made a tactical comment that needs further examination: “I do not think it is under threat.”

What reason did he give for this remark? — “Each time some [critical] statement is made, somebody comes to clarify that statement and says, ‘That is not what I meant’. I hope that that stays so.”

Several paragraphs later he came back to this theme. Significant people made statements from time to time. The person who had made these statements would often say, later, that this was not what he or she had intended to say, or denied making the comment at all. “As long as this goes on I take comfort from it,” he concluded.

In other words, the basis on which he said that judicial independence was not threatened was this: that each time comments were made by prominent political figures which, on the face of it, appeared to threaten judicial independence, there was either a retraction or a denial.

Cold comfort indeed.

But some of his answers to other questions left the matter of this threat to judicial independence even more open to doubt.

Government is in the process

of consulting on a series of draft bills it proposes whose intention, simply put, appears to be to “manage” the judiciary.

Granted there are other by-products of the proposed legislation. One of the four, the Superior Courts Bill for example, also seeks to address the anomalies left by apartheid judicial jurisdictions, like the Venda Supreme Court, or those serving the old “homelands” of Ciskei and Transkei.

But their central thrust, the overwhelming impression created by a reading of the four, one after another, is that the drafters have been intent on finding a way of controlling the judiciary.

The tone used, the almost unbelievably obsessive minutiae in places, the sense of every aspect of a judge’s life coming under the magnifying glass, all contribute to a new and alarming picture: that of a rather junior group of civil servants, constantly causing their employers irritation because of their unwillingness to accept the discipline that the employer believes suitable for their station.

The proposed solution is partly micro-management; partly keeping every one very busy indeed, and partly ensuring through early, radical and persistent dental work, that potentially troublesome canines or other watchdog-type fangs are trained and tamed into something more cosmetically acceptable. And it is difficult to see how judicial independence can maintain an appropriately robust fierceness under such a regime.

Two aspects of these drafts were specifically raised with Judge Langa.

He was asked by a senior member of the Bar, Milton Seligson SC, about judicial education and training — a subject close to Judge Langa’s heart — and how it could be conducted in a way that would be consistent with two impulses, the first being the separation of powers and the second, the need to sensitise the judiciary.

Judge Langa initially re-stated his view of the importance of judicial training. But, he added, much depended on who was giving it, and how it was being given.

In the past, courses for aspirant judges and others have been run by donor funding and the universities. Now it would be preferable for such courses to be more structured.

Although the detail should be separated from the principle, some things were clear. The decision about what should form the content should be made by the judges themselves, he said. The judges should control the system of judicial education because of what comes out of it. “You want a judicial education imparted by the judiciary itself because you want an independent judiciary.”

This was a crucial statement by the chief justice-elect. An independent judiciary is partly dependent on the kind of education given to judges. Unless judges control the system of judicial education themselves, judicial independence is compromised.

Similarly, he answered questions about how public complaints concerning judges should be handled.

Just as with the question of education, there was a sub-text to the question and the answer.

In both cases, the draft bills contain proposals that, in the view of many judges, would threaten their independence and, particularly in the case of the disciplinary mechanism, would simply not work.

“This [how to discipline judges] is a matter in which the public has a huge interest,” Judge Langa said.

“They want to know their complaints will be taken seriously and not be swept under the carpet.”

However, his preferred solution was, once again, a structure and a process that judges themselves controlled because this would ensure their independence. At the same time some means would have to be found to satisfy the public in view of its need to know how complaints were being handled.

The questions of training and discipline are both of real significance in the debate (particularly the debate with the minister) over judicial independence.

In both cases, alternative proposals had been made by the judges themselves, for a system which they would run, which they would support and which in their view would in no way compromise judicial independence or infringe on the separation of power.

Justice College has long offered training for magistrates and is a well-established government institution.

When foreign funding for training judges came to an end a couple of years ago, those most involved in judicial training began casting around for alternative ways of satisfying the need to offer education for judges. One alternative, and the one favoured as the most financially efficient, was for Justice College to be made a statutory body in the same way as, for example, the Legal Aid Board, completely independent of government, but financially accountable to Parliament as in the case of the Board and other such statutory bodies.

Plans for this radical restructuring were well under way. The profile of the college has been greatly improved and it is already highly thought of in Commonwealth and in international legal circles generally. Leading judges involved in the planning of the new deal had been able to win the support of their colleagues for the proposal and it appeared that the judiciary would be prepared to accept training from the new-look Justice College, whose judicial education faculty would be headed by a judge-dean.

Predecessors of the present minister and deputy minister had given their blessing to the proposal and it seemed as though at least one of the difficulties relating to judicial transformation was being satisfactorily resolved.

Then came new ministerial leadership and, with it, an about-turn, reflected in the draft bill related to Justice College and judicial education. Many of the previous proposals are retained — except for the fact that the college has not been given the all-important independent status previously envisaged. Without it, judges will be expected to undergo training at the college in its existing guise as a government-owned, run and managed institution.

Many judges have already reacted sharply, saying to attend courses under such conditions will effectively infringe their oath of office concerning judicial independence.

What of my contention that the draft bills create the impression that the government seeks to control the judiciary, treating its members as troublesome junior civil servants in need of micro-management? Here are some examples of the kind of detail thought necessary to include in the new Superior Courts Bill.

The chief justice will become a kind of director general, with a number of new bureaucratic functions in relation to the rest of the judiciary.

He or she may tell judges to ‘furnish periodical returns of statistics relating to such aspects of the performance of their judicial duties’ as seem appropriate to the chief justice. He or she is also involved in such minutiae as the absence of judges from their desks, as the following two clauses make clear.

“No judge may absent himself or herself from the performance of his or her judicial functions at the court or the place where he or she is permanently stationed or at any other court where he or she is officially deployed, for any period of time whilst he or she is or should be on official duty, unless he or she is specially authorised to do so in terms of this or any other law.”

“Except when a judge of a Superior Court is officially on leave, the Chief Justice, acting in consultation with the head of the court, if applicable, and the Minister, may in exceptional circumstances approve in writing that a judge be absent from the court where he or she is permanently stationed or from any other court or venue where he or she is officially deployed.”

In addition, there are complex but ambiguous clauses related to leave and recess and ‘research periods’ to which judges may be entitled, all laid down with the extraordinary detail which is a feature of these drafts. Although they are still unclear they appear to be reducing the amount of ‘free time’ currently available to judges, to answer the criticism from some government quarters that judges need to be kept more busy and that courts should run more days a year.

The problem with this attitude, and indeed with the proposed provisions, is that it is downright insulting to a group of dedicated professionals who have for decades taken home hundreds of files every night, every weekend, and who spend many non-official working hours going through these documents to prepare for the next court session. This preparation time is not considered in the draft bills as the bureaucrats try to pin down what each member of the bench is doing each moment of the day.

Apart from being insulting, it is an approach inviting a work-to-rule response from the judiciary, with judicial officers working only the rather peculiar hours and conditions stipulated by the bills. And a work-to-rule ethos, which obviously precludes all take-home preparation, would result in immediate chaos in the courts.

Why are those behind the drafts pushing the judiciary so? What is at work here, what is the cause of this desire to ‘tame’ the bench, to teach its members their proper station in public life?

The Constitution makes provision for the rationalisation of the apartheid homeland and other courts — but it has been 10 years in the coming, and now that it is here, it is bundled with a whole lot of baggage that looks more vindictive than helpful.

The row over the courts’ role in the approval or rejection of the government’s proposed regulation of the pharmaceutical industry throws some light on the answer. It is not that the independent attitude of the Supreme Court of Appeal in Bloemfontein provoked this series of drafts — obviously they have been in the pipeline for some time. But the court’s recent decision to declare the regulations invalid is a reminder of what has become intolerable for an executive wedded to the idea of centralism and to a centralised management hostile to the idea of an alternative locus of power. At the very least, it is an executive intolerant of challenge by an unelected judiciary.

Judge Langa referred more than once in his interview to remarks critical of the judiciary made by ‘powerful people’ close to the government. He regards these remarks as so serious that he is comforted only by strong denials as to their accuracy. But they do exist and are a fact of political life in South Africa. They should be a matter of grave concern to everyone in this country because of the threat they pose to judicial independence.

Judicial independence in a judiciary loyal to the spirit and values of the Constitution, is the best protection that the public has against any government — and many of the ‘little people’ in South Africa, the most powerless and the least attractive to the vote-hungry, have already had cause to be grateful to the courts for coming to their rescue.

Note:

Concern about the intentions of the ministry of justice was heightened at a colloquium called by the ministry shortly after the Judicial Service Commission session to discuss proposed new legislation including an amendment to the Constitution. The colloquium, most of which was barred to the media, saw the ministry and its speakers attempting to persuade participants of the validity of the drafts. However, the judges present, including the chief justice, his deputy, and a number of senior judges as well as ordinary members of the Bench, all stood firm in their criticism of the bills for infringing on judicial independence. Other members of the legal profession at the gathering indicated their support for the judges. Several judges have since said they believe the situation has the makings of a constitutional crisis no less grave than the one in the 1950s, and that in some sense the two deal with similar issues — judicial independence and the separation of powers. Following the colloquium, the minister of justice has said the drafts will be reconsidered. But according to judges involved in the process, officials of the ministry have indicated that there is very little room for fundamental modification. They remain seriously concerned about the outcome of the conflict.