Constitutional+amendment,+Rob+Amato,+Sindy

Sunday Independent, Johannesburg, April 30, 2006 //Edition 1//
=Constitutional amendment seeks to push SA courts back under the throne=


 * Rob Amato**

'The controversy is not about transforming the judiciary, nor about reining in errant judges, nor whether judges are over-paid, or underworked. These need attention, but the controversy is about the appropriate separation of the courts from the influence of state power in a constitutional state."

Robert Nugent, a supreme court of appeals judge, talked this week to the Institute of Race Relations of "the thread that weaves through all the government's proposals on the judiciary - the assertion of control over the functioning of higher courts.

"Francis Bacon wanted judges to remember that 'Solomon's throne was supported by lions on both sides: let them be lions, but yet lions under the throne; being circumspect that they do not check or oppose any points of sovereignty'. "Since Bacon's time the courts have emerged from under the throne in most western democracies. The throne itself has become increasingly subject to the rule of law.

"Far from being circumspect not to 'check any points of sovereignty', the courts' role is to ensure that even sovereignty is exercised in accordance with law. The courts properly fulfil that function … only if distanced from the influence of that power."

Nugent sees Johnnie de Lange, when he was chair of the parliamentary justice committee, as having stopped bills agreed to by judges and the government, thus delaying laws that both want. The new laws that De Lange wants became bills when he became deputy minister.

"We had a state where the will of the [white] electorate, represented by parliament, was supreme. Parliament could do as it pleased; the courts were indeed largely 'lions under the throne' - bound to assert the power of the state and with little authority to check it. The state created in 1994 is different; the role of the courts has been altered."

In the present dispensation "the courts are inevitably thrust into a critical role. To be effective, that role must be played by an institution that is, and is seen to be, independent of the influence of other bodies of state".

The constitution says: "The judicial authority of the republic is vested in the courts. The courts are independent, subject only to the constitution and the law, which they must apply impartially and without fear, favour or prejudice."

Independence and impartiality, though related, are not the same, Nugent says. "Impartiality relates to the state of mind with which the law is applied. Independence relates to the condition under which that function is performed.

"Confidence in its impartiality is ultimately all that a court has to underpin its authority. The constitutional court has found that there must be 'an independence in the relationship between the courts and other arms of government'.

"The Canadian supreme court ruled that 'an individual judge may enjoy judicial independence, but if the court is not independent of government in what is essential to its function, the judge cannot be said to be an independent'.

"Separation in a dictatorship is immaterial. There's no potential for confrontation. Where parliament is supreme there'll be confrontation over laws of the government's own making - but it can unmake them if they become too uncomfortable.

"The potential for confrontation between courts and government occurs where the state is bound by laws not of its choosing, which it cannot easily unmake. A court may then come under pressure in its application of laws that constrain government."

The degree of separation is affected by the level of a court in the hierarchy. Constitutional controversies don't happen in magistrate's courts. "The greater the commitment to the rule of law, and the higher the court, the more critical is clear separation between courts and other state arms."

The US and Canadian supreme courts have almost full control over all aspects of their functioning. Pakistani rules give the chief justice the same power over court officers' servants as the president has over government employees. The Ghanaian, Indian and Ugandan constitutions are similar.

The administration of the higher courts here is done by the justice department but there is informal autonomy, through co-operation, between the courts and the department. This remains inconsistent with the constitutional guarantee of independent courts.

"While other democracies have evolved greater institutional separation, we are about to arrest any such evolution and to reverse what little has been achieved," Nugent says.

The Judicial Service Commission (JSC) long ago approved a department-proposed system for complaints against judges - administered by judges.

"Now the proposal has the ethics code prepared by a body, including executive appointees who serve on the tribunal. That is where the objection lies. What is at issue is only to whom judges should account.

"The 14th amendment is the first to seek to change fundamental elements of the constitutional structure. The authority of the constitutional court will be increased and that of the supreme court of appeals decreased.

"High court judges-president and deputies will be appointed by the president instead of the JSC. No court will be entitled to order the suspension of the commencement of an act of parliament while it determines its constitutionality.

"The amendment gives the minister authority over the administration and budget of all courts. The bill creates an office of the chief justice staffed by an executive secretary appointed by the minister, who must only consult the chief justice. The office will record judges' recesses, leave periods and absences from courts."

The minister will make rules for "any matter which may be necessary or useful to be prescribed for the proper conduct of the courts' functions. So judicial independence is being restricted to what the Canadian supreme court calls the 'individual independence of a judge' ".

Nugent said judges are the most accountable of officers. They must give reasons for their decisions, which are subject to appeal. "The controversy is not about judges at all. It is about the preservation of the constitution."

Asked what he saw as the world-view behind the proposals, Nugent declined to answer. Helen Suzman later said: "It's simple. They want to control all the levers of power."


 * From: http://www.sundayindependent.co.za/index.php?fArticleId=3224973**

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