Draft judges' bill 'unconstitutional'
Cape Town - The draft judges' remuneration and conditions of employment amendment bill does not pass constitutional muster, the Centre for Constitutional Rights (CCR) said on Tuesday.
In a submission to the National Assembly's justice and constitutional development committee, CCR director Nikki de Havilland said the bill "offends against the principle of equality, the principle of legality, and undermines the independence of the judiciary".
The committee is holding public hearings on the bill, which is intended to facilitate the extension of current Chief Justice Sandile Ngcobo's term of office.
It also seeks to provide clarity on the appointment and extension of the term of offices of the Chief Justice and the President of the Supreme Court of Appeal.
De Havilland said the amendment was unconstitutional since, among other things, it offended against section 176(1) of the Constitution.
Independence of the judiciary
This section only empowered Parliament to extend the 12-year term or the retirement age of 70 of Constitutional Court judges collectively and equally. It did not permit, as provided in the bill, for an extension of one Constitutional Court judge's tenure on an individual basis.
The bill also struck at the principles of the separation of powers and independence of the judiciary, since it undermined the perception and reality of judicial independence.
The tenure of judicial officers went to the core of both judicial independence and the separation of powers, she said. A fixed term of office was an important component of judicial independence.
This was because the power to determine tenure enabled the holder to decide the professional fate of judges.
"As such there will inevitably be a suspicion or perception that they will be beholden to the person who has the power to truncate the term of office of their appointment."
Both the Chief Justice and the President of the Supreme Court were part of the judiciary, which was the ultimate adjudicator on the constitutionality of the conduct of the other branches of government.
"That suspicion of impartiality is thus heightened when the head of one of these branches is the person responsible for determining their tenure," De Havilland said.
For these, and other reasons, the bill did not pass constitutional muster and simultaneously undermined a valuable constitutional principle sought to be achieved by the framers of the Constitution.