DA to push for changes to JSC composition to ensure confidence in judicial independence
The lack of sufficient suitable applications for judicial vacancies occurs at a time when the judiciary is increasingly under pressure from the governing party to "co-operate" with the executive, rather than perform its constitutional mandate of adjudicating on executive action and legislation without fear or favour.
We believe that the lack of interest from the legal fraternity in applying is because prospective candidates believe that the ANC-stacked Judicial Service Commission (JSC) is unlikely to give candidates a fair and equal chance of selection.
The Democratic Alliance (DA) will propose amendments to the composition of the JSC, if possible whilst dealing with the 17th Constitutional Amendment Bill, currently before the Justice Portfolio Committee. We will push for fewer political appointees, in favour of more people from the judicial and legal fraternity.
The DA has for some time now expressed our concern that the composition of the JSC is too open to political manipulation, with 12 out of the 23 JSC members currently being either ANC politicians or appointees of the President.
Over the last few years, the JSC has failed to inspire confidence among members of the public and the legal fraternity that they are acting in the best interests of an independent judiciary. In fact, quite the contrary.
Two of their decisions have recently been overturned; the case of Premier of the Western Cape versus the JSC, and the recent case of the Cape Bar Council versus the JSC. Moreover, the type of questioning of candidates over the last few years, interrogating people for their religious beliefs and race, for example, have clearly had the effect of deterring good candidates from making applications, as they are not prepared to subject themselves to this.
The lack of faith in the process of judicial selection is clearly illustrated by the fact that the JSC will sit in April to interview shortlisted candidates. None, however, have been shortlisted for the Constitutional Court and the Electoral Court because of insufficient appropriate applications.
These two courts are, of course, pivotal to the preservation of our constitutional democracy. The Electoral Court must adjudicate disputes relating to alleged unfair election practices. The Constitutional Court is the highest court in all constitutional matters, and may become the highest court in all matters after the finalisation of the 17th Constitutional Amendment and Superior Courts Bills. These should be positions to which judicial officers aspire.
When candidates do not have faith in the selection process, it has the potential of dissuading independent people from applying, thus limiting the pool of candidates from which judicial officers are chosen to those who are more executive minded.
It is vital that judges of the highest calibre and integrity are appointed to all courts. If the ANC truly believes in the independence of the judiciary, its members will have no reason to oppose this move.
Statement issued by Debbie Schafer MP, DA Shadow Deputy Minister of Justice and Constitutional Development, March 11 2012
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