COMMENT
BY THE CENTRE FOR CONSTITUTIONAL RIGHTS ON THE JUDICIAL SERVICE COMMISSION
AMENDMENT BILL 2007
1. Introduction
This Bill is part of a necessary and laudable attempt by
Government to ensure a more efficient and accessible justice system. This particular
Bill emanates from a similarly titled Bill which was introduced on 10 January
2006 (2006 Bill), in conjunction with a package of 5 Bills, being the Superior
Courts Bill (B 52-2003); the Judicial Service Commission Amendment Bill; the
South African National Justice Training College Draft Bill and the Judicial
Conduct Tribunal Bill and the Constitution of the Republic of South Africa
Thirteenth Amendment Bill. Due to major concerns raised by the public at large
and especially the judiciary and the local and international legal profession
regarding interference with judicial independence and the separation of powers,
the Bills were withdrawn on the advice of the President. This Bill, together
with the South African Judicial Education Institute Bill, is the first of the
revised Bills. Given the very limited time within which comment was allowed, we
are grateful for the indulgence afforded by the Chairperson of the Portfolio
Committee in agreeing to receive late submissions.
2. The 2006 Judicial Service Commission
Amendment Bill.
The 2006 Bill tasked the Judicial Service Commission
(JSC) with appointing a sub-committee termed a Judicial Conduct Committee (JCC),
the responsibility of which was to advise the Chief Justice on ethics, to
compile a code of judicial conduct, consider and dispose of complaints and
maintain a register of financial interests of judges. The latter amendment was
necessary as no formal disclosure requirements existed, a necessary instrument
to ensure transparency and to promote efficiency through the exposure and
deterrence of conflicts of interest.
3. Similarly, a code of ethics which could
direct judicial behaviour and a code of judicial conduct which prescribed
clearly defined, enforceable standards of behaviour were welcome improvements,
as although judges were guided in their conduct by a 34-clause code issued by
the Chief Justice in 2000, no legally binding enforcement mechanism existed and
legal clarity in interpretation was sorely lacking.
4. The expanded complaints procedure was
necessary as the existing legal framework only provided for dealing with
conduct which justified impeachment. No procedures existed which enabled the
JSC to receive or handle complaints from the public on behaviour which was
serious, but not impeachable and to meet out sanctions in respect of such
behaviour.
5. The present Bill likewise aims at
addressing the question of ethics, judicial conduct, the disclosure of judges’
financial interests and judicial discipline. However, a welcome difference between
the 2007 Bill and the 2006 Bill is the composition of the JCC which comprises
only members of the Judiciary and is far less cumbersome. This changed
composition will permit speedier resolution of complaints, reinforces the independence
of the Judiciary and promotes fair administrative action
6. Against the above background the Bill
will be considered both in respect of welcome improvements and in respect of remaining
areas of specific concern.
7. The 2007 Judicial Service Commission
Amendment Bill
a) Ad S 4 of
the Bill:
The
inclusion of the 4 members designated by the President after consulting the
leaders of all the parties in the National Assembly as possible candidates for
the position of acting chairperson of the JSC impinges on the division of
powers required by the Constitution.
Only members who belong to the judicial and legal profession should be
eligible. This section should thus be amended to limit eligibility to members
holding office in terms of s 178 (1) (b),
(c), (e), (f) and (g) of the Constitution.
b)
Ad s7 of the Bill:
The
peremptory nature of the duty to publish is a welcome step in ensuring openness
and transparency.
c)
Ad s 8 of the Bill:
Although
the principle Act made provision for reporting on the Commission’s activities,
obligating publication of procedures and enquiries into judicial conduct
promotes openness and fair administrative justice.
d)
Ad s 9 , new s 7(1)(c)
As the
Commission will have to make determinations regarding questions of gross
incompetence, members referred to in s 178 (1) (j) of the Constitution should also be excluded.
e)
Ad s 9, new s 8:
f)
Ad s 9, new s 11:
i) A fundamental principle in ensuring a
fair trial as prescribed by s34 of the Constitution is the impartiality of the
judiciary. An equally important requirement for ensuring a fair trial is that there should be no
unreasonable delay in beginning and
concluding the trial. Any
additional work undertaken by judges performing active service must inevitably impact negatively on their ability
to expeditiously conclude a trial and deliver a judgment. For this reason,To this end,
the general prohibition on active judges performing remunerative work contained
in subsection 1 is welcomed. However an essential role that judges do fulfil is in educating the public and members of the legal
profession, especially aspirant members, on the law.
Sitting judges have a
particular contribution to make in this regard. To this end, by way of exception, judges performing active service should be allowed to participate in literary and
educational activities. If certainty on these
permissible exceptions is sought, is also welcomed and the
publication of a list as prescribed in subsection 2 would
achieve thissupported. However, the broad limitation that only such services as are closely linked to the
office of a judicial officer is not sufficient. For although this limitation will certainly
contribute to enhancing public confidence in the judiciary . However the scope of permissible
services is cause for concern. Crucial to the effective dispensation of justice is
public confidence in the judiciary. By limiting permissible exceptions to the
prohibition to only such services as are closely linked to the office of a
judicial officer, through
eliminating occupations which are either damaging to the image of
the judiciary or incompatible with the
gravitas of its function, are excluded. This limitation will certainly contribute to enhancing
public confidence in the judiciary. However,
certain services, specifically commercially linked services which, objectively
viewed, may be closely connected with the office of a judicial officer, may
give rise to a conflict of interest. and diminish public confidence. It is
accordingly suggested that s 11 (2) (a)
(i) be amended to read:
“Which are
closely connected with the office of a judicial officer and which
are only
educational or literary in nature;”
Alternatively sitting
judges could be required to apply to the Minister on an ad hoc basis.
ii) S 11(3) is also cause for
concern. In its present form the section
does not pass Constitutional muster, for three reasons. Firstly, it fails to
differentiate between those judges who under s7 (1) of the Judges Remuneration
and Conditions of Employment Act 47 of 2001 are required to be available to
perform service until they attain 75 years for periods which in the aggregate
amount to 3 months in the year, and those judges who have retired and no longer
have any contractual obligations. Secondly,
the constraints imposed on the ability of retired judge’s to participate in
economic activity and earn a livelihood are in conflict with s 22 of the
Constitution and thirdly, the limitation cannot be justified under s 36 of the
Constitution.
iii) S 22 reads as follows:
“22
Freedom of trade, occupation and
profession
Every citizen has the
right to choose their trade, occupation or profession freely. The practice of a
trade, occupation or profession may be regulated by law.”
Any limitation on this
right would, in terms of s 36 of the Constitution have to be:
“ … in terms of law of general application to
the extent that the limitation is reasonable and justifiable in an open and
democratic society based on human dignity, equality and freedom, taking into
account all relevant factors, including
iv) A limitation on the right of judges who
may still be required to perform active service to choose freely could not be
justified in terms of s22 as the intention of the second sentence in s22 is to
permit the legislature to regulate a profession by regulating its practice. The
regulation in this instance is however not aimed at regulating the practice of
being a judge as its purpose is to curtail engagement in other occupations and
cannot therefore be regarded as a case of the state seeking to regulate a
profession. The limitation could,
however, arguably be justified in terms of s 36 given the purpose of the
limitation, which is to maintain impartiality and uphold the dignity of the
judiciary. However these judges
constitute an indispensable pool of experience and if regard is had to the
relationship between the limitation and its purpose, certain services would be
entirely appropriate and it would be detrimental to the public interest to
deprive society of the benefit of these services.
v) Services
which would be in the public interest and which would still uphold the image of
the judiciary would include writing of textbooks and articles, delivering
lectures, teaching law, serving as arbitrators, ombudsmen, inspector-generals, commissioners
or judges, including judges of appeal in neighbouring states and overseas. Any
limitation on these services would not be justifiable or reasonable.
vi) Any infringement of the right of those
retired judges who have no obligation to perform service to choose their
profession or occupation freely can likewise not be justified in terms of s22
as the intention of the second sentence in s22 is to permit the legislature to
regulate a profession by regulating its practice. The regulation in this
instance is however not aimed at regulating the practice of being a judge as
its ambit is in respect of retired judges.
vii) Neither can the limitation be justified
in terms of s36. S36 requires that the
limitation be of general application, which means that it can be neither
capricious nor arbitrary in the scope of its application. [1] Given the absence of rationality, the
limitation appears to be both. The section also requires that the limitation be
justifiable in an open and democratic society which means that there has to be
a rational connection between the purpose of the limitation and the limitation,
failing which the limitation would be arbitrary and a fortiori incompatible with an open and democratic society.[2]
It is self evident that questions of conflict of interest and public image do
not apply to retired judges with no obligation whatsoever to perform active
service and for this reason there is no rational basis for curtailing their
right to engage “freely” in any occupation.
viii) Under the circumstances it is proposed
that subsection 4 be deleted and that subsection 3 be amended to read as
follows:
(3) A judge who has been discharged from active service,
but who is still required to perform
active service under s7 (1) of the Judges Remuneration
and Conditions of Employment Act 47 of 2001, may hold any office or perform. any s ervices for
reward, provided that such office or service does not
interfere with or inhibit such judge’s
capacity to fulfil any legitimately expected active service.
g)
Ad s
9 new s 13:
A register of Judicial Officer’s
interests is a commendable step towards promoting openness and accountability,
and the provisions of s 13 are accordingly supported. As the public however has
no vested interest in the activities of retired judges, the exclusion of these
judges is supported. Similarly, the exclusion of families from the provisions
of subsection 2 is welcomed as the invasion of privacy of those members would
far outweigh the limited value that the public would derive from such
disclosure.
h)
Ad s
9 new Part 111:
The
procedures prescribed meet with the substantive and procedural protections
enumerated in s 35(3) of the Constitution and are welcomed by the Centre.
March 2007