Next week the Judicial Service Commission (the JSC) will convene to nominate five applicants for consideration by the president for two vacancies at the Constitutional Court. For the record, the JSC is required to nominate three more candidates than the number of vacancies.

These vacancies have not been filled for a long time and this alone has caused controversy. Vacancies should be filled speedily. It has been argued that by postponing the process of nomination, an opportunity has been given to appoint a series of acting justices to the Constitutional Court, thereby ensuring that a better assessment of prospective justices could be made.

This practice is not itself beyond criticism, but that is for another column. Suffice to note that all those who have been nominated have acted on the Constitutional Court and their judicial records are thus well known.

Given this information, it is regrettable that so little public analysis of the six nominees for the highest judicial office in South Africa has taken place. Between the ineptitude of the media and the lack of courage or apathy of the academy, the public will have no real idea as to who is being considered for positions that are critical to the future of constitutional democracy in this country.

This stands in sharp contrast to even the US, hardly an exemplar of constitutional democracy at this point in history, but where the public is well informed about candidates for judicial office. Within this context the role of the JSC in its public hearings next week becomes all the more important.

It is to the JSC that we must now turn exclusively to provide the kind of information by which the public of this country may know who is being nominated as their custodians of the Constitution.

To fulfil this role, it is to be hoped, indeed expected, of the JSC that it engage meaningfully with the approach of nominees to the Constitution and its value system, the records of nominees and their expertise to meet the needs of the highest court. To be clear, the fact that a nominee is a sitting judge does not on its own qualify her or him automatically to be a member of the highest court of the country.

One can be a very competent high court judge or even a member of the Supreme Court of Appeal and not be deemed sufficiently qualified for the very highest judicial office where the judgments of the Constitutional Court bind the entire legal system. It for this reason in the main that the JSC interviews need to probe deeply into the qualifications of nominees for this most prestigious judicial office.

Illustratively, an interview designed to fulfil this objective may want to contain the following line of questioning:

1. What is the nominee’s conception of separation of powers? This is not only about a justifiable definition, but more about the approach that a nominee adopts to the vexed question of where law ends and politics begins. This line of questions should then refer to the judicial record of the nominee; after all, each nominee has to provide a full record of judgments including those confirmed and overturned on appeal, and this record, which is generally voluminous, is made available to each member of the JSC long before the hearings.

2. A discussion about the nominee’s views about the value system of the Constitution and how that informs his or her judicial decisions. Related thereto, what is the nominee’s view of the role of the Constitution in dealing with the profound inequality in the country?

3. Given that the Constitutional Court has been accorded expanded jurisdiction and now deals with a vast range of law beyond purely constitutional issues, what is the expertise of the nominee in any or all of these areas, for example: Commercial law, company law, tax law, competition law, maritime law, intellectual property. Can the nominee point to judgments which he or she has written in these areas which would indicate some working knowledge or, better still, real expertise in any of these areas?

4. What is the record of the nominee in respect of delivering judgments within the time parameters as set by the Office of the Chief Justice?

5. Given recent controversies concerning Constitutional Court judgments, what is the nominee’s views about the criticism levelled against the Jacobs judgments where the Court deadlocked at five-all or the recent approach of the Court to administrative law which has been so severely criticised?

This is merely an indicative list, which doubtless may be different from that preferred by members of the JSC.

The point is not to suggest that the JSC cannot come up with its own line of questioning; it is to argue that a line of questioning that probes the ability of each nominee to meet the exacting standard that the country is entitled to demand should be applied for elevation to the Constitutional Court.

In broad terms, this detailed kind of approach to the interview will promote the kind of deliberation that should apply to ensure that each person whose name is forwarded to the president for appointment to the Constitutional Court has been fairly tested. DM