Advocates body backs leaner JSC

2013-08-18 14:00

General Council of the Bar signals its support for a private member’s bill submitted by the DA

The influential body that represents South Africa’s advocates has come out in support of a constitutional amendment that would reduce the power presidential and political representatives have in appointing judges.

The General Council of the Bar, which governs the advocates’ profession in South Africa, has signalled its support for a private member’s bill submitted by the DA.

The Constitution 19th Amendment Bill, if passed, would drop four political appointments and two presidential representatives from the Judicial Service Commission (JSC).

The bill was tabled in Parliament by DA MP Dene Smuts as a private member’s bill on Tuesday.

In its submission on the bill, which it tabled this week before Parliament, the General Council of the Bar says that “although the JSC is a compromise between a political and a legal-professional model for the appointment of judges, at present the JSC is very large and its membership is fairly heavily weighted in favour of politicians”.

“A smaller body with a finer balance of interests is preferable.”

But while the council supports Smuts in reducing the size of the commission, it disagrees with her on changes and additions to the criteria used when judges are appointed. The section of the Constitution that governs the requirements for the appointment of judges and the way the commission goes about its business has frequently been the subject of controversy.

In its submission on the bill, the council says it doubts whether it is necessary or desirable for the Constitution itself to elaborate on the requirement for a “fit and proper” person.

“The Constitution is an instrument for the long term.

“A generally stated requirement allows for its application to be adapted to meet changes in circumstances over time.”

In its submission to Parliament, the University of Cape Town’s Democratic Governance and Rights Unit agrees it “may not be possible to enshrine these aspects of a strong appointments process in a constitutional amendment”.

“If – without making any insinuations about past or present members of the JSC – those members are not committed to appointing competent, independently minded judges who are committed to upholding the Constitution, then such judges will not be appointed, regardless of how carefully the Constitution is amended.”

Smuts’ bill is based on conclusions drawn in the National Development Plan, which recognises perceptions that the commission is “too large to function effectively, and (is perceived) to be hamstrung by political interests”.

Chief Justice Mogoeng Mogoeng has previously defended the commission against allegations of political interference in its work, citing foreign jurisdictions where the appointment of judges was “politicians’ work”.

But Dr Karen Brewer, the secretary general of the Commonwealth Magistrates’ and Judges’ Association, which has conducted research on the topic, earlier this year told the Commonwealth Law Conference in Cape Town that the best model for a judicial appointment body had “no members of the executive or legislature whatsoever”.

Constitution 19th Amendment Bill

JSC: Before and after the Constitution 19th Amendment Bill

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