The hearings conducted by the Judicial Service Commission (JSC) in respect of the appointment of a new Chief Justice (CJ) will be completed this week. Already, after the interviews of Justice Mbuyiseli Madlanga and President of the Supreme Court of Appeal (SCA), Justice Mandisa Maya, the poverty of both the nature of the interviews and the press coverage is startlingly apparent.
Where oh where is our Linda Greenhouse, the superb journalist who covered the US Supreme Court for The New York Times to write probing analysis of proceedings rather than the almost breathless cant that passes for reportage in our media?
For starters, it has not been made clear that the JSC has an exceedingly limited role in the appointment of a Chief Justice. True, there has never been a previous occasion when four nominees have been put forward by the President, but even so, the role of the JSC is limited in respect of the appointment of the Chief Justice. It is not for the JSC to make the kind of decision that it usually undertakes, namely appointment to the High Court/SCA or a list of nominations for the Constitutional Court from which the President chooses.
In the case of the CJ (and Deputy Chief Justice), Section 174 of the Constitution makes it clear – the President is obliged to consult both the JSC and the leaders of political parties represented in the National Assembly. But the use of the words “after consultation with” means that the ultimate decision is that of the President. It is of course possible, given the presence of four nominees, that the JSC can inform the President that it considers Justice A to be the person who should be CJ but, even so, the President has a clear discretion to ignore that advice.
In the present situation, he already has the advice of the Pillay Panel that may well have ranked the nominees. He will obtain advice from political leaders and doubtless his own legal team so that he would be entitled to ignore the JSC, assuming it makes one specific recommendation. Indeed, in the case of the four nominees, it is difficult to argue that each is not clearly fit and proper to be CJ; hence the width of the presidential discretion in this case.
It has already been claimed that this is the strongest list for CJ that has ever been compiled. Well, in 1994 the contest was to appoint either Arthur Chaskalson or Ismail Mohamed to be the president of the Constitutional Court (later the position was converted to that of CJ). On even a generous interpretation, it is hard to conclude that those two legal giants do not compare favourably with the present list.
So much for tangential details.
The real problem before the JSC is that the questioning consists of general questions which allow broad answers short of specifics, political interventions (often about the commission) or speeches. Advocate Dali Mpofu SC was helpful when he spoke of criteria – leadership, people skills and administrative and management capacity.
But these suggestions need to be filled out – a CJ should have a clear vision of a legal system being developed in the shadow of the Constitution. How can law contribute to the construction of a society based on freedom, dignity and equality for all who live here? How is the South African judiciary to contribute to a legal system that offers all, particularly poor people, reasonable access to justice? How do the courts become more efficient? How does the judiciary gain greater legitimacy in the eyes of the public? (Opinion surveys reveal deep public scepticism about the institution.) What criteria should best be applied to judicial appointments? How do the courts recover from their current resource poverty? (Reliable IT, and libraries that are up to date, for example.)
If one is a candidate for the highest judicial office, clear thoughtful proposals beyond “Well, we need to change the system”, should be offered and debated.
If, as is surely an imperative, gender must be uppermost in the restructuring of the profession, surely our new CJ should offer more than that “we should be careful about the use of language in court” (which is important but hardly sufficient). While ensuring that the judiciary becomes more sensitive to gender transformation in all its manifestations, nary a mention was made or asked about what a more feminist jurisprudence would look like. It is easy to invoke identity in general terms and its role in appointment, but how lawyers effect the necessary ideological change to legal concepts and thinking is another vastly more complex issue that demand answers from a judicial leader
Sadly, speaking of ideology, the fissures in the JSC were apparent in the style of questioning. It may be a great disservice to Justice Mandisa Maya (her loyalty to impeached Judge President John Hlophe notwithstanding, and which issue may yet confront her if she becomes CJ) in that she has such obvious merit, to observe that a clear ideological faction of the JSC was so obviously excessively sympathetic to her in the interview. Again, it raises the problem of the composition of the JSC and its clear inability to stick to the more objective criteria for a CJ who can lead the judiciary out of the problems bequeathed to it by the last judicial administration.
One can only hope that the President adopts tangible criteria and applies them in his choice of CJ. He will be making a critical decision for the future of substantive constitutional democracy. DM