Judges under the microscope

AS LEGAL policy framers have been finding out, re-joining the international community means more to South Africa than simply sport and investment opportunities. It also means accepting and hosting monitoring missions intent on discovering whether Pretoria is upholding its international commitments; the discipline of receiving and taking seriously their subsequent critical reports - and putting a gracious face on the whole exercise.

So far, however, the report of Dato Param Cumaraswamy, the United Nations special rapporteur on the independence of judges and lawyers, appears to have made little impact on the legal community or in the media, even though it has been available for well over two months.

It deals with nine issues he investigated during a visit to South Africa in May 2000: the independence of the magistracy; a complaints mechanism for the judiciary; a unified judiciary; minimum sentencing legislation; the practice of appointing acting judges; the independence of public prosecutors; an integrated legal profession; legal aid and access to justice; judicial training and continued legal education. He also raises in passing the Truth and Reconciliation Commission hearings into the role of the judiciary and whether the way it was handled compromised judicial independence; as well as the prevalence of "judge-bashing" - attacks on the judiciary through the media.

In essence he concludes:
the magistracy - there is no evidence of executive inference in decisions, but because of a number of factors including the functions carried out by magistrates under the previous regime, they are not generally perceived to be independent;
a judicial complaints mechanism - a good idea, but it should be run by judges and retired judges, rather than by a combination of judges and lay people as originally proposed by the department of justice;
a unified judiciary bringing magistrates and judges under its aegis - he gives this his approval;
minimum sentencing - this could be a problem, although it might be saved by the provision that the sentence does not have to be imposed "where substantial and compelling circumstances" exist not to do so;
the system of acting judges - it could undermine judicial independence for a variety of reasons;
the public prosecution service - he stresses the need for it to be independent;
an integrated legal profession - he welcomes the proposal to break down barriers between advocates and attorneys. However, in subsequent exchanges with the department of justice he has expressed concern about the way government officials and advisers are going about achieving this end, saying it compromises the independence of the profession and of the judiciary;
legal aid and access to justice - newcomers to the legal profession should be taught in their training that lawyers are expected to act for no charge in a certain number of cases every year;
judicial training and continued legal education - those judges who refuse to attend such training on the grounds that it will compromise their independence are wrong and should acknowledge it.

Most of the issues addressed by Cumaraswamy are controversial in South Africa. In fact he acknowledges having received complaints and information related to several of them even before coming to this country on his mission last year. But there can be no doubt that the "hot" issue at the moment and for the foreseeable future is the legislation through which the government seeks to integrate and control the legal profession - the draft Legal Practice Bill. A key aspect of the Bill is a new council, modelled on similar bodies that oversee and control estate agents, architects and other professions. It will be composed of 20 members not all of whom will be lawyers, and a majority of whom may be selected by the minister of justice.
A constant refrain of the legal profession is the apparent failure of the department and its advisers to understand the crucial role of judicial independence and how that independence is threatened if the profession that provides members of the judiciary is not itself independent. This they fear is a likely result under the conditions created by the proposed Legal Practice Bill.

Cumaraswamy - who supports an integrated profession, but opposes the council as the government now plans it - is undoubtedly committed to judicial independence and he will be an invaluable ally in this fight, bringing with him great experience and the weight of the international community. However it will be disingenuous if lawyers hail Cumaraswamy's views when the battle is fought over the Legal Practice Bill but ignore them on other matters, where he is also addressing potential threats to judicial independence. His views ought to be taken seriously on all nine issues and the questions he raises should be thought through carefully, even if the ultimate decision is not to change the status quo.

Take the question of acting judges. Cumaraswamy urges that South Africa's system of appointing acting judges should be reconsidered. His critique begins with a statement that one of the essential elements of judicial independence is security of tenure. When the limited permission given in the Constitution for acting judges is taken as carte blanche to use acting appointments as a system of probation, then the alarm bells should ring, he says.

Cumaraswamy is concerned that the Judicial Service Commission, whose task is to interview candidates and recommend suitable people for appointment, as well as advising the government on judicial matters, is completely bypassed when it comes to acting appointments. There are no interviews, no process of public scrutiny, no system of recommendation. It is simply a matter of the personal decision of the minister of justice with the judge president of the relevant division.

He points out that there is no restriction on the kind of cases or appeals that acting judges can hear. One acting judge, he recalls, told a senior judge that he knew if the Judicial Service Commission interviewed him for a full-time appointment, he would be asked why he had made a particular decision in a case with a political dimension. Cumaraswamy gives some examples of how in other jurisdictions - including Scotland, Norway, Pakistan and Slovakia - the independence of a tribunal has been challenged because the judicial officer did not have a permanent appointment.

Asked about Cumaraswamy's report, officials of both the department of justice and the Judicial Service Commission immediately sprang to the defence of the present system, without even reflecting on the grounds of his criticism. They made the point that the system of acting judges, by providing for a period of "short probation", allowed lawyers who were deprived of suitable experience by apartheid, to taste judicial life. They could gain experience, show their potential to their peers on the Bench, and give the individuals involved an opportunity to decide whether they would be suited for life as a judge. In other words, the system of acting judges is said to be an essential tool in overcoming the distortions created by apartheid: a crucial element of transformation. "We make no apology for it, and we are determined to continue with it," said Marumo Moerane, SC of the Judicial Service Commission.

And, indeed, during the commission's hearings in April, candidates were asked as usual about their acting experience. The understanding continued undisturbed that rarely if ever would someone be appointed to a permanent post who had not had experience as an acting judge.
The department and the commission may well be correct that the system of acting appointments is essential to transformation. But that is no reason not so much as to discuss Cumaraswamy's arguments, at least to ensure that any possible damage done by what is after all meant to be a temporary measure, lasting only as long as necessary to undo apartheid's distortions, is kept to a minimum. Instead, the commission did not deal with the issue at all during its April session. Asked whether it was likely to be on the agenda in October, members appeared to have a general sense that by then the debate would no longer be relevant.

The scenario raised by Cumaraswamy - that acting judges approach certain decisions, particularly those having a political dimension, with a sense of discomfort, knowing they could be questioned about the outcome during any interview with the commission - is a matter that needs to be addressed urgently, even if only to clarify the kinds of questions that are appropriate for commissioners to put to a candidate about decisions handed down while an acting judge.

Ironically a system very similar in operation to that now in use, flourished under the previous government, when it was also used to "test" potential judges and was spoken of as a necessary mechanism to ensure that the person being considered for appointment was suitable. This system seems to have become part of South Africa's legal way of life, unquestioned even now. Surely there is at least room for discussion of how this need for "probation" is handled in other jurisdictions that do not permit acting appointments?
Contrast that lack of engagement with the response to Cumaraswamy's criticism of minimum sentencing legislation. Under these provisions, judges must impose statutory terms of imprisonment unless "substantial and compelling circumstances" exist not to do so.

Cumaraswamy notes that this legislation is not "as regimented" in South Africa as in other countries that have minimum sentence laws. The "substantial and compelling" provisions "take away the stink" of what he calls "legislative sentencing with judges and magistrates seen as rubber stamps of the legislature". Nevertheless, he says, "such legislation does impinge upon international standards of judicial independence."

"It is beyond dispute that sentencing in a criminal trial is part of the judicial process of the trial. Such legislation may offend the fair trial procedures in article 14 of the International Covenant on Civil and Political Rights and principle 3 of the United Nations Basic Principles on the Independence of the Judiciary."

The provisions that he criticises were also the subject of judicial disquiet in South Africa's high courts. Both before and after his report was issued a number of decisions were handed down wrestling with the questions he asks, although not quoting him directly. In two murder cases (Malgas and Dodo) the respective high court judges had doubts about the constitutionality of the legislation requiring them to pass a life sentence in the absence of substantial and compelling circumstances not to do so. They were referred to appeal and in separate judgments the Supreme Court of Appeal and the Constitutional Court ruled that the legislation is not unconstitutional.

At least on this issue there is a sense that Cumaraswamy's criticisms have been thoroughly investigated, even if the legislation stays on the statute books. Through their judgments, the two highest courts reminded members of the judiciary that they are not "rubber stamps of the legislature"; that while Parliament is entitled to indicate crimes for which punishment should be tougher, judges retain judicial discretion; and that the Constitution requires them to pass appropriate sentences and ensure a fair trial.

In the months since Cumaraswamy prepared and released his report, tension has grown in South Africa between members of the legal profession and justice officials over the thinking that lies behind the Legal Practice Bill in its successive drafts. Now Cumaraswamy has again stepped into the fray through dialogue and correspondence with justice officials. In his latest report, released in April, Cumaraswamy writes of the council's controversial composition:

"The government is reported to have justified such a composition on the basis of comparative legislation which establishes councils in the health, accounting, engineering, architecture, estate agency and quantity surveying professions and which have a similar composition." He notes that he has written directly to the justice minister expressing his concerns and has clarified why the legal profession in a democratic society is different from the other professions. He will continue to monitor developments.
Difficult days lie ahead for lawyers as they take on justice department officials over their vision of how the profession should be controlled. Cumaraswamy's warnings on the draft Bill and the attitude of the drafters are timely and well reasoned. But they would undoubtedly be more influential if South Africa had developed a culture in terms of which all his warnings on potential infringements of judicial independence were given the serious consideration they warrant.

The TRC: why the judges were right
The Truth and Reconciliation Commission has deplored the refusal of judges to appear before it in person to give account and answer questions. It argued that their appearance would have demonstrated accountability, which is the essence of democracy, while neither compromising the independence of the judiciary nor, since it was a unique event, creating a precedent.
In his report Cumaraswamy, who originally advised the TRC against compelling judges to appear, regrets the finding. He argues that judicial accountability is not the same as the accountability of the executive or legislative branches of government. This is because of the independence and impartiality expected of the judicial branch. Judicial officers are accountable to the extent that they must decide the cases before them expeditiously and fairly, giving their reasons; their judgments are subject to scrutiny by the appellate courts. Legal scholars and even the lay public, including the media, may comment on the judgment. If judicial officers engage in misconduct, they are subject to discipline according to the mechanism provided by law. They should not be accountable for their judgments to anyone.

"Though the commission was unique, to call upon the judges to account before that institution would have set a precedent for the future, not only in South Africa but in other parts of the world as well. A situation, however well intentioned and motivated and however unique, could be used as a precedent in a less unique situation. The Special Rapporteur considers that the judges were quite justified in declining to appear before the commission."