Since 1994 the constitution has been supreme and any legislation or conduct inconsistent with the constitution is invalid and the Constitutional Court can strike it down. Should the president extend the term of the Chief Justice ? The “issue” concerns the powers of appointing the chief justice and the other judges. The Judicial Service Commission should appoint and discipline judges.
“A person who is implicated in the arms deals corruption, who has appointed a loyal, but allegedly bent, ANC cadre as the head of the National Prosecuting Authority — a position which constitutionally requires independence — and who may be in the dock himself, if a decision to withdraw 783 counts of corrupt activities is reversed on review, has purported to extend the appointment of the chief justice. That this occurs at a time when litigation is pending in respect of all of the matters just mentioned, is a sure recipe for a constitutional crisis. Mix in the apparent urgency with which the ANC is approaching the passing of secrecy and media control legislation, and the recipe becomes a potent one. The problem is that the goose of our nascent democratic order will be cooked to a cinder, if the president is allowed to get away with what he has perpetrated”.
Today Business Day was the first to publish an article by Paul Hoffman on the Constitution entitled Welcome call from ANC to depoliticise judge’s selection. Paul Hoffman is a Director of the Institute for Accountability in Southern Africa (Ifasa).
The article needs to be read in its entirety by clicking on the link but here are some extracts.
Crossroads and busy intersection
THE Constitutional Court sits at the crossroads between the law and politics. This is a busy intersection, one at which there is a heavy flow of traffic from all directions. It is potentially dangerous, if not lethal, to be in the middle of the intersection if the traffic is not properly controlled.
The judiciary is the weakest and smallest branch of government. However, because its function in politics is to act as a checking and balancing force against excesses of other branches of government or of civil society in general, it plays a crucial role in safely “directing the traffic” in our constitutional multiparty democracy under the rule of law.
In the old SA there was no Constitutional Court. The system was a race-based parliamentary sovereignty, in which Parliament was supreme. Now, thankfully, we have a constitutional democracy for all and our Parliament is no longer supreme. The constitution is supreme and Parliament, along with the rest of the populace, is constrained by the provisions of the constitution, our supreme law. Any legislation or conduct inconsistent with the constitution is invalid and can, on application, be struck down as such by the Constitutional Court.
Not rocket science
This is not rocket science. But, if the president and the chief justice stick to their guns and insist that the president does have the necessary authority to extend, a bruising round of litigation, initiated by the Centre for Applied Legal Studies and the Council for the Advancement of the Constitution , will follow in which the chief justice (for accepting) and president (for appointing) will be respondents, and in which the deputy chief justice and the other nine members of the Constitutional Court will have to do their duty and exercise their, probably exclusive, jurisdiction to determine the issue of whether or not the president does have the power to extend the term of office of the chief justice.
Watchdog nature of courts
Having regard to the watchdog nature of the courts, the basic elements of independence and impartiality of the judiciary are best cultivated by an open, transparent and accountable appointments procedure which is depoliticised, as the ANC now suggests.
Upholding constitutionalism
The judiciary is sworn to uphold constitutionalism in all it does in the more elevated position it occupies in our new order. This is a position in which it is answerable only to the law and the constitution. It is a position that must necessarily be confidently occupied, if the aspirations of our constitutional state, which has been substituted for the odious apartheid parliamentary sovereignty, are to be realised. The striving of the nation for peace, progress and prosperity is encapsulated in the various rights and freedoms guaranteed in the Bill of Rights. The pursuit of human dignity, equality and freedom for all is our national goal .
It was reported in Business Day today that the President has backed down and legislation will now be introduced to deal with the situation.
Hopefully this will avoid the need for the judges in the constitutional court, other than the chief justice, having to decide the constitutionality of the President’s actions.