Judicial Appointments Conference

JUDICIAL APPOINTMENTS CONFERENCE

Grande Roche Hotel

Paarl

27-28 September 2013

1Introduction

The Democratic Governance and Rights Units (DGRU)organised a conference on judicial appointments which was held from 27 to 28 September 2013 in Paarl, Western Cape. The aim of the conference was to engage various stakeholders in a discussion regarding appointments to judicial office in South Africa. This report gives an outline of the proceedings of the conference.

2Day one: Setting the scene

The opening session of the full conferencewas facilitated by Professor RichardCalland. He stated that the aims of the conference were:

To galvanise new interest in judicial appointments in a wider section of society;
To provide researchers such the DGRU and others with information on how to strengthen the judicial appointment process;
To develop a better grasp of key pressure points in judicial appointments and how to fix them;
To convene the first ever forum on judicial appointments in South Africa, escaping the unhealthy binary approach to the issue of transformation. The question is how to establish and maintain a sound, robust and strong transformation process.

2.1Opening remarks

The session was opened by remarks from Justice Zak Yacoob and Justice Kate O’Regan.

2.1.1Justice Yacoob

Justice Yacoobmade the following points in his speech:

There is need for a discussion in a quiet, calm and respectful spirit because it is all in good faith;
There is need for a common understanding of JSC criteria and operations;
Problems cannot be completely fixed immediately;
It is wholly untrue that the judiciary is worse off than it was before 1994, since back then it was racially biased and there were no anti-government decisions;
The JSC was designed as a solution to pre-1994 problems in judicial appointments; it was intended to be a well-balanced body that was representative, to ensure that judges were appointed from a broad pool and not just from among senior lawyers;
Questions we need to ask are:
Has the system of judicial appointment improved?
What are the weaknesses in the system?
How can they be improved?

We also seriously need to figure out the relation between merit and transformation.

2.1.2Justice O’Regan

Justice O’Regan highlighted several points in her speech:

The legacy of disadvantage and exclusion caused by apartheid continues to this day, hence the transformation injunction;
Public discussion on transformation has become polarised;
We need to have a shared common purpose that accepts that the aim of the judiciary is to deliver justice;
Judicial transformation does not have one meaning, not even in the Constitution. It has many facets including:
Demographic change. Strides have been made, but more has to be done e.g. more black female judges are needed. The main pool of judges is the bar of which black lawyers do not form the great majority, thus transformation is a long way off. There is need to look at judicial education – there is no funding for this at present.

The importance of diversity in the judiciary should not be underestimated:

It advances legitimacy of the judiciary in the eyes of the public. Promoting demographic transformation entrenches the view that demographics matter in judicial appointments – the same goes for gender – thus there is an inference of partiality since people identify with those who are like them.
It keeps prejudices in check. It must be remembered that judges are not wholly free from prejudices– no one is naturally impartial. If all judges are from the same background, it is easy to entrench prejudice and it is not easy to know your own prejudice. We need to focus on entrenching impartiality. Diversity makesus aware of our prejudices, and thus promotes open-mindedness in the judiciary.

Process of appointment and accountability.It seems there is no perfect method of judicial appointment. It is vital that there is accountability and transparency. There is need for actual and perceived fairness in the process. Comments by the JSC must be professional and in line with the Constitution – this excludes homophobic and sexist remarks. Scrutiny of candidates must not be unfair. The JSC needs to think through questions before interviews. Regarding deliberations, voting after interviews is not enough. We must consider whether JSC deliberations must be in public, as this may enhance competence and integrity and contribute to the transformative mandate. However, private deliberations may be better as they can promote openness while public deliberations can foster sham debates.
Rethink and recast qualities of a good judge: what do we expect of a judge? What is justice? We need a common understanding on these issues. The problem is that due to our past there are few black and female lawyersto draw from. We need to be interest governed but value-oriented. Experience and diversity cannot really go together because of our history: we need to focus on appropriate potential. The question to be posed is: how do we determine potential? This is a difficult question. It is necessary to promote mentoring and training in order to enhance potential. A good judge must be fair-minded and have a good temperament (thinking, diligence, commitment, kindness). He or she must treat witnesses courteously and deliver judgments speedily. Therefore, the record of the judge must be carefully scrutinised.

2.2DGRU – The current landscape

2.2.1Presentation by Chris Oxtoby

Oxtoby commented that:

The JSC is mistrusted by some practitioners and the interviews are seen by many as an unpleasant experience;
There have been instances of a lack of candidates putting themselves forward for important positions in the judiciary, notably the Constitutional Court. This is a worrying trend and raises questions as to whether there is something wrong, leading to a perception problem regarding the appointments process;
There seem to be two major issues: the criteria used to appoint judges, and the process followed in establishing those criteria during the public interviews;
Criteria are vital. While they may be contested, the JSC should be striving for some degree of consensus.The JSC’s September 2010 criteria need to be revised as they are too broad and open-ended. Further, they are seldom referred to in the interviews;
On process, there is sometimes unequal and inconsistent treatment of candidates, and the JSC on occasion uses the interview process to defend its own reputation. This has led to some surprising appointments;
Politics within the legal profession may also impact on the interview process;
Questions on deference and the separation of powers are being asked increasingly, which is not inappropriate in and of itself but raises questions about longer term trends in terms of the kind of judges being appointed;
We need to ask ourselves when transformation, broadly understood as being more than demographic composition alone, will be achieved and how we will recognise that point;
The issue of acting appointments and how they are made is fundamental.

2.2.2Presentation on gender transformation by Tabeth Masengu

Masengunoted that:

Gender and merit are not mutually exclusive;
There is an unfortunate assumption that women are both less intelligent and competent than men;
That it is important to have a representative judiciary because :
It boosts public confidence in the judiciary and the legitimacy of judicial decisions;
It enhances impartiality and, as stated by Justice O’Regan, identifies blind-spots as regards prejudices masquerading as common sense;
It enhances a plurality of perspectives because life experiences do matter. Our courts need a variety of judges, not just those from privileged backgrounds who come from the advocates profession, but those from previously disadvantaged backgrounds who have worked as prosecutors in challenging sections of societies;
It is important for symbolism, as it signals women’s full inclusion in public life.

The above reasons are cemented by the fact that a representative judiciary is a constitutional imperative as stated in section 174(2) of the Constitution.She ended the presentation by stating that there was a need to move away from arguing about which man did not get appointed because we already have 70% male representation in the judiciary.It is hoped that in the near future, the question will not be which man did not get appointed but ‘which women need to be appointed and what can we do about that’.

2.3International perspective – the state of play

A presentation was given on the process of judicial appointment in Namibia. It was stated that:

There are no real criteria for judicial appointment in Namibia; there is little scrutiny of candidates and no real direction;
The Namibian JSC is little more than a rubber stamp; judge presidents have wide power as they prepare lists of nominees;
The composition of the JSC is problematic, with only five members. There is need to amend the Constitution to change this but there is no political will to do so;
The judiciary is also facing challenges with poorly performing judges – senior judges including the Chief Justice have taken up to 13 years to deliver judgments. It is difficult for the JSC to do anything about this since the Chief Justice and judge presidents sit on it;
The JSC is very politicised:
Exile politics dominate, where those in charge are those who spent time in exile, and are unwilling to promote those who never were in exile;
Professional politics play a role, where the issue is who briefed whom.
There is a small pool from which to draw candidates:
There is a lack of qualified practicing legal practitioners who can transform the judiciary – most lawyers are legal advisors;
There are few nominees;
The situation is worse for women as there are very few women in the legal profession – the judiciary only has two female High Court judges who were appointed from the magistracy;
There are many challenges including skills and training.

2.3.1Judge Thomas Masuku (Swaziland)

Judge Masuku focussed on the importance of the independence of the JSC, which he argued was critical to judicial independence. He noted that:

The independence of the JSC is not usually provided for in most jurisdictions e.g. Swaziland, Zambia, Zimbabwe, South Africa and Namibia;
In Swaziland, the independence of the JSC is guaranteed, but in practice the JSC is not independent. For instance, complaints against the Chief Justice, who chairs the JSC, were dismissed by the JSC;
The lack of independence means that ‘non-palatable’ yet good candidates are never recommended;
At 23, the South African JSC has the second highest number of members of institutions surveyed, after Italy which has 27. The high number of members may have a negative impact on the efficiency of interviews – ‘too many cooks spoil the broth’. The average number of members seems to be between 9 and 11.
We need to ask if political members must be part of the JSC in light of the separation of powers.The Commonwealth Magistrates and Judges Association says no political members should sit on the JSC;
The problem is that devious characters may abuse laws that are otherwise unproblematic;
The inclusion of lay persons in the JSC is desirable to help the public to embrace the judiciary, since judges are not elected by ballot;
Gender balance must start with the composition of the JSC itself. Kenya sets a good example in this regard;
The role of the legal profession in judicial appointments is vital, but there is need to make wise comments;
Judges should not be married to their judgments, they should accept criticism.

2.3.2Dr Jan van Zyl Smit (Bingham Centre for the Rule of Law, speaking in his personal capacity)

Dr van Zyl Smit offered a global perspective on judicial appointments with a focus on the Commonwealth:

Culture does matter;
Judicial appointment is more controversial than the performance of judicial officers because (a) judges have security of tenure and must be independent: once appointed, therefore we are stuck with them unless they are impeached through usually cumbersome processes; and (b) scrutiny post-appointment is too late;
There is a need for a legitimate judiciary because of the interests that are at stake in the cases that come before the courts;
There is need for public confidence in all those participating in and the framework of judicial appointment;
In the Commonwealth, the process of appointment to judicial office is, in practice, most often made by independent institutions rather than directly by the political branches of government. 83% of commonwealth jurisdictions have independent institutions involved in appointment;
The Latimer House Guidelines requires a publicly declared judicial appointment process that is free of discrimination.There is no prescription for an institutional framework;
Kenya has set a good example of transparency and accountability in judicial appointment. It used to have a dysfunctional appointments system. For instance, the President was seen as too dominating,to the extent that there was seen to be no merit in challenging the election outcome in 2007,despite rigging being captured on live TV. In 2007, a new 11-member JSC was created, chaired by the Chief Justice. There are public hearings for interviews and the JSC has a detailed record of judges and a vetting process. There is a statutory set of criteria defining what makes a good judge. Qualities include professional competence; oral or written communication skills; fairness; good judgment; and community service. The judiciary is now better resourced than before and there is training for judicial officers;
Public hearings, in the Kenyan context, are better as they act as a deterrent to serving judicial officers whose past judicial conduct made them unsuitable for appointment;
Previously in the UK, the Queen used to appoint judicial officers through the Lord Chancellor, in a process that was shrouded in secrecy and potentially open to abuse. However, especially in recent decades, the process was generally seen to be impartial. There is an impulse to modernise things especially in light of external commitments such the European Court of Human Rights, the European Union and domestication of Convention rights via the Human Rights Act of 1998. There is now an appointment commission in charge of the appointment of judges and magistrates. It represents a good balance, consisting of six lay persons (one of whom is the chairperson), five judges, two practising lawyers and one law magistrate and one member of a tribunal. Interviews are in private and recommendations are made to the Lord Chancellor who can on narrow grounds (that there is insufficient evidence of suitability or that the person is not the best candidate) reject it or ask for reconsideration. Selection is based on merit, though there is an objective to secure diversity. Disclosure of rejections and reconsideration are given by the Lord Chancellor to the Commission, no names are given publicly. However, some have argued that the process is not politicised enough, and politicisation of the process is necessary in order to provide a range of perspectives and increase legitimacy. Further, gender representation has not increased as fast as was hoped. There are also problems of defining merit.

3Day 2: Reflections and the way forward

This session was chaired by Justice O’Regan and consisted of a presentation on the system and processes of appointment, reflections from participants and responses from international speakers.

3.1Systems and processes for appointment

This presentation highlighted the following points:

Staking race and gender versus merit is a fundamentally offensive idea and approach, there is need for a principled and constructive approach to transformation;
Judicial office is a public office and appointment is thus not a personal accolade;
It is important to have criteria because decision making is better if made in light of criteria;
There is need for a diverse bench; this is a fundamentally important imperative. Diversity goes beyond race and gender – we need to widen the candidate pool to include academics, attorneys and the legal profession as a whole. The real question should be: what are the skills that make a good judge?
The criteria used by the JSC are of a general sort and beg many questions. However, it is good that experience is not the only criterion, but thatpotential is also considered. The issue is not about whether this approach is correct in principle, but how potential is assessed;
Determining the qualifications of a good judge is difficult. It is obvious that a law degree is a must, but beyond that there are more questions than answers:
Administrative and communication skills are important;
Punctuality;
Relevant prior experience: this can be complemented through judicial training;
We need to look at and name detailed skills: what are the skills? What is the threshold?
The impact of enduring discrimination.

Peer review is also important in the process of judicial appointment. It may be beneficial to examine the situation in America where the American Bar Association has a standing committee on federal judges which rates every nominee as qualified, well qualified, or not qualified. The yardsticks employed are professional competence, judicial temperament and integrity. The review is based on written records supplied by the candidate and interviews with people the candidate has worked with, including secretaries.

3.2Stakeholder Reflections and Perspectives

Various issues were raised by participants at this stage, some of which were answered by others:

How do we really discuss judicial appointment without reference to race and gender? Does this approach include transformation? These are difficult questions but transformation remains of vital importance;
The judiciary is progressively becoming illegitimate because it is a part of a government that is against the poor, as evidenced by delivery protests. The poor do not see the judiciary as equipped to redress or address their problems;
There is need to focus on the magistracy as well, since 90% of the people deal with magistrates’ courts. Our exclusive focus on superior courts shows that we as civil society are part of the elite;
We are running short of brave lawyers who can directly challenge problematic judicial officers;
Do we see a progressive jurisprudence over the 20 years of democracy?
How should we conceptualise independence? It is usually construed narrowly to mean anti-government. Independence entails fearlessness and bravery;
Courtesy is not a dispensable quality of a judge;
The non-functionality of the South African Judicial Institute is a tragedy, especially in the case of the magistracy;
The Constitutional Court has progressively pro-poor jurisprudence to date, including on socio-economic rights;
We need to question the progressive nature of the curriculum in our law schools. Further, the legal profession must also be questioned in light of its interest in money and thus commercial law;
Independent mindedness is a constitutional principle with respect to the judiciary. Where did it go?
The qualifications for judicial officers in the Constitution must be amended because they are too broad at present. The composition of the JSC also needs to be amended – it should be more representative of lay people and members of civil society organisations;
Section 174(2) of the Constitution is not part of the criteria, thus the JSC criteria were wrong in conflating sections 174(1) and (2). The first thing is to look at a suitable candidate, then secondly to go to section 174(2). This can be compared with sections 193(4) and (5) with respect to the public service;
Merit is raced and gendered; this goes to the being a ‘fit and proper person’;
We must ask ourselves what has gone wrong for us to discuss these issues regarding judicial appointment. For instance, certain ‘qualified’ candidates have not been recommended by the JSC. This does not mean that the standard of our judiciary has been eroded;
We should not forget that the judiciary is not the sole resolver of social problems. A contrary perception will put the judiciary at risk. Judges should not take on a political role but must be trusted by all including the government;
Why does gender and racecause offence?
Judges must not be too sensitive;
Race and gender are indispensable part of criteria;
Black lawyers still feel inferior.The white-male syndrome is yet to disappear in practice;
There is need to consciously build a group of citizens who can defend the rule of law;
Civil society must be proactive and not just reactive;
Lawyering should move away from being profit driven;
There is need for the legal profession to be united, it cannot afford to be divided;
Development of criteria must also involve an evaluation of who we do not want as judges;
In developing criteria, we may learn a thing or two from the human resource management approach in respect of the requirements and duties stipulated in job adverts and interviews. Judicial appointment is not rocket science;
The real question on criteria is: what is the JSC looking for? Further, what value system informs the process of judicial appointment? The problem is that most members in the JSC are not there because of constitutional values but because of the ANC;
There is need to have lawyers and other members of civil society in the JSC;
There is need for constructive criticism of judicial appointment and the JSC;
Apartheid history cannot be ignored. For instance, senior counsel are mostly white males;
The American Bar Association reviews have been criticised in that it is mostly corporate lawyers who do them. Further, the reviews are used in different ways, and in some instances are kept out of the process altogether.

3.3Perspectives from the international speakers and general responses on solutions/responses

The following ideas were raised and comments made regarding possible solutions: