Comments on the impact of South Africa s Constitution Fourteenth Amendment Bill and the Superior Courts Bill

Transcription

1 Comments on the impact of South Africa s Constitution Fourteenth Amendment Bill and the Superior Courts Bill

2 Material contained in this report may be freely quoted or reprinted, provided credit is given to the International Bar Association. International Bar Association 10th Floor, 1 Stephen Street London W1T 1AT United Kingdom Tel: +44 (0) Fax: +44 (0) /6545

3 Introduction This analysis is written in response to a call for comments on the Constitution Fourteenth Amendment Bill, 2005 ( the Constitution Amendment Bill ) and the Superior Courts Bill [B ] ( the Superior Courts Bill ). The Bills are part of an attempt by the Department of Justice ( the Department ) to rationalise court structures and to ensure a more efficient and accessible justice system. This is a necessary and laudable initiative. However, it is the view of the International Bar Association (IBA) that aspects of the Constitution Amendment Bill and the Superior Courts Bill ( the Bills ) impermissibly impede the independence of the Judiciary, which is critical to the functioning of a constitutional democracy. The Bills, insofar as they relate to judicial independence, deal with regulating the judicial and administrative functioning of the courts. The Constitution Amendment Bill also prevents a court from making an order suspending the commencement of an Act of Parliament or provincial Act. At the outset, the IBA notes with concern that these Bills have been widely criticised by South Africa s court-community. Vocal opposition to certain aspects of the proposed measures has come from members of the Judiciary, the organised Bar, leading members of South Africa s legal profession and academics. 1 The Bills in question form part of a package of five Bills that were made public during These are as follows: 1) the Constitution Amendment Bill; 2) the Superior Courts Bill; 3) the South African National Justice Training College Draft Bill; 4) the Judicial Service Commission Amendment Bill; and 5) the Judicial Conduct Tribunal Bill. Only the Constitution Amendment Bill and the Superior Courts Bill are currently before Parliament. The remaining Bills are, as far as we are aware, still the subject of discussion between the Department and the Judiciary. These remaining Bills deal with matters as varied as judicial education, the creation of oversight structures and procedures in respect of judicial conduct and ethics and the impeachment of judges. We note that the concern about the Bills expressed by ourselves and other interested parties relates to the institutional independence of the Judiciary. There has never, to our knowledge, been any attempt by the Executive to interfere with the actual decisions of the courts and with the way in which cases might be decided. We therefore assess the provisions of the Bills in relation to the yardstick of institutional independence in this report. 1 See for example: Justice Sector and the Rule of Law Constitutional Litigation Unit, George Bizos SC 17 February 2006 presented to Open Society Foundation of South Africa and the Goedgedacht Forum Seminar on The Superior Courts Bill: Does the Draft Constitution Fourteenth Amendment Bill Pose a Threat to our Democracy? and Press release by General Council of the Bar of South Africa, 24 February 2006.

4 The nature of judicial independence Before evaluating the effect of the Bills, it is important to discuss the meaning and nature of judicial independence. Judicial independence and the separation of powers are a key foundational value in any democracy. It is a requirement set out in section 165 of the South African Constitution, which currently provides, in relevant part: (2)The courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice. (3) No person or organ of State may interfere with the functioning of the courts. (4) Organs of State, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts. The Constitutional Court has recognised that judicial independence is foundational to and indispensable for the discharge of the judicial function in a constitutional democracy based on the rule of law. 1 Indeed, judicial independence is implicit in the rule of law which is foundational to the Constitution. 2 The separation of the Judiciary from the other branches of government is also an important aspect of the separation of powers required by the Constitution and is essential to the role of the courts under the Constitution. 3 Furthermore, judicial independence is crucial to guaranteeing an individual s rights to a fair trial and to ensuring public confidence in the administration of justice. This is particularly because the Executive is a frequent litigant before the courts and judges must therefore be perceived to be completely independent of the Executive. The Constitutional Court of South Africa has followed the approach of courts in other jurisdictions in making clear that judicial independence has two separate components: 1) individual independence the requirement that judicial officers act independently and impartially in dealing with cases that come before them; 4 and 2) institutional independence the requirement that the necessary structures and guarantees exist to protect courts and judicial officers against external interference by the other branches of government. 5 In understanding the requirement of judicial independence, it is critical to note that judicial independence is not akin to a right that can be limited for certain reasons or in certain circumstances. On the contrary, the Constitutional Court has made clear that... institutional judicial independence itself is a constitutional principle and norm that goes beyond and lies outside the Bill of Rights. The provisions of s 36 of the Constitution dealing

5 with the limitation to rights entrenched in the Bill of Rights are accordingly not applicable to it. Judicial independence is not subject to limitation. 6 1 De Lange v Smuts NO and Others 1998 (3) SA 785 (CC) at para Van Rooyen and Others v The State and Others (General Council of the Bar of South Africa Intervening) 2002 (5) SA 246 (CC) at para South African Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA 883 (CC) at para Van Rooyen v The State (supra) at para Id. 6 Id at para 35 (emphasis added).

6 Concerns The IBA has three primary concerns regarding the effect of the Amendment Bill and the Superior Courts Bill on judicial independence. These are: the amendments deprive the courts of the responsibility they should properly have over relevant administrative and budgetary issues; the amendments give the Minister of Justice too great a degree of control over the appointment of acting judges on the Constitutional Court; and the amendments restrict the ability of courts to grant just and equitable relief. We address each of these in turn. Depriving Courts of appropriate responsibility regarding relevant administrative and budgetary issues The Constitutional Amendment Bill proposes an amendment to section 165 of the Constitution which is the section that recognises and guarantees judicial independence. The proposed amendment includes two new sub-sections as follows: (6)The Chief Justice is the head of the judicial authority and exercises responsibility over the establishment and monitoring of norms and standards for the exercise of the judicial functions of all courts, other than the adjudication of any matter before a court of law. (7) The Cabinet member responsible for the administration of justice exercises authority over the administration and budget of all courts. The effect of the amendment is that the Chief Justice and Judiciary are confined to dealing with judicial functions while the Minister is effectively vested with sole authority for the administration and budgets of all courts. This attempt to create a rigid divide and exclude the Judiciary from questions of administration and budgets is made clear by the memorandum to the Bill, which explains that the object of this provision is to ensure that: the Commonwealth model of the separation of powers between the Executive and the Judiciary is maintained and constitutionally entrenched, with the responsibility for the judicial functions of our courts being the sole preserve of the Judiciary and the responsibility for the administrative functions of the courts being the sole preserve of the relevant Minister. [emphasis added] The Bill therefore appears to have two critical underlying premises. 1) First, judicial functions are completely distinguishable and severable from administrative functions.

7 2) Second, there is no need for the Chief Justice or Judiciary to be involved at all in administrative or budgetary issues. It is the IBA s view that each of these premises is unsustainable. Both the Canadian Supreme Court and the Constitutional Court of South Africa have made clear that numerous administrative decisions... bear directly and immediately on the exercise of the judicial function. 1 Both Courts therefore held that an essential element of judicial independence is judicial control over these decisions. The proposed constitutional amendment prevents the Judiciary from having any control over these decisions let alone complete control as should be the case. It thus goes against wellestablished norms of judicial independence, which is of great concern to the IBA. Likewise, it is inappropriate and undermines judicial independence for the Judiciary to have no role on issues of budgets. Financial autonomy is fundamental. Without it, the Executive can seriously impact upon judicial independence by limiting the Judiciary s access to the funds voted to it by Parliament. Another possibility is that the Executive can assume control of the staff upon which the Judiciary depends. The Constitutional Court made clear in the context of the Electoral Commission, financial independence is an essential element of institutional independence. This implies the ability to have access to funds reasonably required to enable the Commission to discharge the functions it is obliged to perform under the Constitution and the Electoral Commission Act. This does not mean that it can set its own budget. Parliament does that. What it does mean, however, is that Parliament must consider what is reasonably required by the Commission and deal with requests for funding rationally, in the light of other national interests. It is for Parliament, and not the Executive arm of Government, to provide for funding reasonably sufficient to enable the Commission to carry out its constitutional mandate. The Commission must accordingly be afforded an adequate opportunity to defend its budgetary requirements before Parliament or its relevant committees. 2 The Court went on to say this meant that the Commission could only be accountable to the National Assembly regarding budgetary issues and not the Executive. 3 In the United States of America, in 1996, similar arguments were presented by the legal profession in response to a proposed law that empowered the Executive to veto parts of a bill (usually budget appropriations). It was argued that the law posed a threat to the independence: [W]e are concerned that the recent line-item veto legislation could upset the delicate balance created by our Constitution. Under the new law, almost all the judiciary s appropriations are subject to line-item veto by the President. Now, the Chief Judge... Gilbert S Merritt, has testified before Congress in support of an exemption of the judiciary from the line-item veto. He said [i]t requires little imagination to see how a threat to judicial independence could come from undue financial pressure by the executive branch. 4

8 Yet the proposed amendment places sole control of courts budgets in the hands of the Minister of Justice, an approach entirely at odds with the New National Party decision. The danger in this regard is obvious it means that the courts, including the Constitutional Court, are entirely dependent on the Executive for resources that they require. This fails to guarantee the independence of the courts as it means that the Executive could attempt to put pressure on the courts by means of withholding funds. Thus each of the premises underlying the proposed amendment regarding judicial authority is in conflict with South Africa s existing jurisprudence on the subject of independence. This is a serious concern for the IBA because, in our view, the existing jurisprudence is correct and principled in its conceptualisation of the nature and detail of judicial independence. Furthermore, it is of grave concern that the Department and proponents of the Bill have failed to acknowledge that the amendment has the effect of reversing the existing jurisprudence and that, in so doing, it flies in the face of existing conceptions of the nature of judicial independence in modern constitutional democracies. The Superior Courts Bill in a number of ways mirrors the changes proposed in the Amendment Bill. These changes give rise to the concerns discussed above. There is however, an additional concern raised by the Superior Courts Bill. This is that section 41(1) of the Superior Courts Bill provides that the Minister may make rules that regulate the practice and procedure of the various courts. Earlier drafts of the Superior Courts Bill provided that the rules of the Constitutional Court would continue to be made by the President of the Court and the Chief Justice, as was the case in the past. The rules of other superior courts were to be made by the Rules Board, which was to consist of various representatives of the Judiciary, legal practitioners and academics, and one representative of the Department. This procedure took into account that the High Courts needed uniformity and therefore there was a need for a representative Rules Board. However, the current Superior Courts Bill empowers the Minister to make rules for all superior courts. The Minister will do so on the advice of an advisory Board but is not bound to follow the Board s advice. In effect, therefore, the power to make rules has been removed from the hands of the Judiciary. In our view, this is an unnecessary and problematic incursion into the institutional independence of the Judiciary. Rule-making is an administrative function that bears directly on the judicial function and therefore should be retained in the hands of the Judiciary. The IBA s concern is particularly acute regarding the application of this practice to the Constitutional Court. The interim Constitution provided that the making of rules for the Constitutional Court would be prescribed by the President of that Court in consultation with the Chief Justice. This was regarded as important because it ensured that the Legislature and the Executive, whose legislation and conduct would be subject to constitutional review, would have no

9 control over the way in which the Constitutional Court functioned. This remains, in the IBA s opinion, an important consideration and it is therefore a matter of some concern that the Superior Courts Bill seeks to change this position. Commonwealth countries In 2003 the Heads of Government of the Commonwealth recognised the importance of the values of separation of powers and judicial independence. Their commitment to these fundamental values were further carried forward by the adoption of a set of principles and guidelines by which Member States would seek to ensure the policies and practices of participating states conform to the agreed standards contained in the guidelines, known as the Commonwealth (Latimer House Principles) on the Three Branches of Government. In regard to the independence of the Judiciary, the Commonwealth recognised that An independent, impartial, honest and competent judiciary is integral to upholding the rule of law and engendering public confidence and dispensing justice. The principles further provide that Adequate resources should be provided for the judicial system to operate effectively without any undue constraints which may hamper the independence sought 5 And that Interaction, if any, between the Executive and the Judiciary should not compromise judicial independence. 6 Although the Latimer House Principles outline the ideal relationship between the Executive, Parliament and the Judiciary but they do not set out a model institutional design to be followed by Commonwealth countries. This is important to note because the explanatory memorandum of the Superior Courts Bill refers to the Commonwealth model of the separation of powers and, as such, implies that such a model exists. A comparison of the proposed reforms with three Commonwealth jurisdictions of Australia, Canada and Ghana that are recognised internationally as models of good legislative practice in this regard, reveals some means by which the South African framework could be improved to better preserve the institutional independence of the Judiciary 7 : AUSTRALIA In Australia, the administration of Australian courts is governed by the Courts Administration Act The purpose of this act was: to establish the State Courts Administration Council as an administrative authority independent of control by executive government; and [emphasis added]

10 to confer on the Council power to provide courts with the administrative facilities and services necessary for the proper administration of justice. 9 Under the Act, a Judicial Council was established. 10 The Council consists of the Chief Justice of the Supreme Court, Chief Judge of the District Court and the Chief Magistrate of the Magistrates Court. 11 The Council is responsible for providing all the administrative facilities and services that are necessary to enable the participating courts 12 and their staff to carry out their judicial and administrative functions. The courts however remain responsible for their own internal administration. The Council has the power to establish administrative policies and guidelines to be observed by participating courts in the exercise of their administrative responsibilities. 13 The separation of power between the Judiciary and the Executive is safeguarded by the Council being responsible for the administration of the courts. CANADA In Canada, the Courts Administration Service was set by virtue of the Courts Administration Service Act 2002 on 2 July The purpose of the Act was to: (a) facilitate coordination and cooperation among the Federal Court of Appeal, the Federal Court, the Court Martial Appeal Court and the Tax Court of Canada for the purpose of ensuring the effective and efficient provision of administrative services to those courts; (b) enhance judicial independence by placing administrative services at arm s length from the Government of Canada and by affirming the roles of chief justices and judges in the management of the courts; and [emphasis added] (c) enhance accountability for the use of public money in support of court administration while safeguarding the independence of the judiciary. 14 The Chief Administrator s job is to ensure the efficient management and administration of all court services, including court facilities, libraries, corporate services and staffing. 15 Further, the registrar is answerable only to the Chief Justice, which maintains the separation of powers between the Judiciary and the Executive. GHANA Ghana s Constitution provides one of the most impressive frameworks to protect the institutional autonomy of the Judiciary. Article 127 of the Constitution of Ghana guarantees the independence of the Judiciary both in its judicial and administrative functions, including financial administration: (1)In the exercise of the judicial power of Ghana, the Judiciary, in both its judicial and administrative functions, including financial administration, is subject only to this Constitution and shall not be subject to the control or direction of any person or authority.

11 (2) Neither the President nor Parliament nor any person acting under the authority of the President or Parliament nor any other person whatsoever shall interfere with Judges or judicial officers or other persons exercising judicial power, in the exercise of their judicial functions; and all organs and agencies of the State shall accord to the courts such assistance as the courts may reasonably require to protect the independence, dignity and effectiveness of the courts, subject to this Constitution. An independent Judicial Council, 16 comprising of a substantial majority of non-government members, was set up in order to ensure the efficient dispensation of justice 17 and any functions granted to the Chief Justice 18 under the Constitution which include the administration of the Judiciary. 19 Further to these provisions, the Ghanaian Constitution sets out a detailed framework for court rule-making. Under Article a Rules of Court committee shall by constitutional instrument, make rules and regulations for regulating the practice and procedure of all courts in Ghana. 21 The composition of this committee is covered by Article 157 (1)(a)-(c), which requires the Chairman to be the Chief Justice, who is to be assisted by six members of the Judicial Council 22 and two lawyers nominated by the Ghana Bar Association. Article 158 regulates the appointment of court officials and staff. In order to enhance judicial independence, appointments shall be made by the Chief Justice 23 without the need for Presidential approval. 24 It can be clearly seen that the Ghanaian Constitution goes to great lengths to insulate the Judiciary from political control. Giving the Minister of Justice undue power in the appointment of acting judges of the Constitutional Court The Constitution Amendment Bill also seeks to amend section 175 of the Constitution by providing for the appointment of acting judges of the Constitutional Court. Currently, section 175(1) provides that acting judges of the Constitutional Court are to be appointed by the President acting on the advice of the Minister of Justice in concurrence with the Chief Justice. By contrast, the Amendment Bill proposes that acting judges of the Constitutional Court (including an acting Deputy Chief Justice) be made by the President on the advice of the Minister of Justice after consultation with the Chief Justice. Thus, the amendment seeks to reverse the position in which the concurrence of the Chief Justice is required for any such acting appointments. It is clear the change means that the Minister must consult with the Chief Justice, but may ultimately lawfully choose not to heed his or her views or wishes. In the IBA s view, the existing requirement that there be concurrence by the Chief Justice is an important safeguard against Executive intrusion into institutional independence.

12 This is particularly so given that the appointments are to be made to the Constitutional Court, which is the highest court in the country for constitutional matters. The Executive is regularly a litigant in the Constitutional Court and as such, it is imperative that the Minister not be entitled to have an effective free hand to appoint acting judges that could effectively swing the vote in any particular case. This is especially so in light of the fact that the Court sits en banc. Restricting the ability of courts to grant just and equitable remedies The Bill proposes an amendment of section 172 of the Constitution which governs the remedial powers of the Court. It proposes the inclusion of a new sub-section (3) in that section, to read as follows: Despite any other provision of this Constitution, no court may hear a matter dealing with the suspension of, or make an order suspending, the commencement of an Act of Parliament or a provincial Act. The Bill therefore seeks to preclude a court from making an order suspending the commencement of an Act of Parliament or a provincial Act. The effect of this amendment is to restrict the remedial powers of courts even where it would have been just and equitable to grant such a remedy. There are two situations in which the section 172 amendment will severely limit the remedial powers of the courts. The first situation involves a request by at least one-third of the members of the National Assembly or a provincial Legislature to have the Constitutional Court consider the constitutionality of an Act that has been assented to and signed in either the National Assembly or the provincial Legislature concerned. This procedure is provided under sections 80 and 122 of the Constitution. Under sections 80(3) and 122(3) of the Constitution as it currently stands, the Constitutional Court is empowered to order that all or part of an Act has no force until the Court has decided the application before it. This is, in effect, a power to suspend the commencement of the Act in question. Crucially, however, the Court may only take this action under section 80(3) or 122(3) where it is of the opinion that there is a reasonable prospect of success in the application and that the interests of justice require suspension of the Act in question. Thus, the court would have to conclude that the Act is prima facie unconstitutional before embarking on this path. However, the Amendment Bill proposes that this power be removed completely. It provides that despite any other provision of the Constitution, the Court may not hear a matter dealing with the suspension of the commencement of an Act let alone actually suspend the commencement of the Act. Thus, the Amendment Bill proposes that even if the Act is prima facie unconstitutional and even if it is also in the interests of justice to suspend the commencement of the Act, the Constitutional

13 Court may never do so. This is, in the IBA s view, a grave and unnecessary restriction of the Court s remedial powers. The second situation involves an applicant or group of applicants approaching a court alleging that the provisions of an Act will infringe their constitutional rights if brought into force. As the law currently stands, it remains an open question whether the courts have the power to suspend the commencement of an Act in these circumstances. In President of the Republic of South Africa and others v United Democratic Movement and others, 25 the Constitutional Court explained the difficulty of determining the appropriate limits to the role of the courts in a constitutional democracy as follows: One of the founding values in section 1 of the Constitution is a multi-party system of democratic government to ensure accountability, responsiveness and openness. The legislature has a very special role in such a democracy it is the law-maker consisting of the duly elected representatives of all of the people. With due regard to that role and mandate, it is drastic and far-reaching for any court, directly or indirectly, to suspend the commencement or operation of an Act of Parliament On the other hand, the Constitution as the supreme law is binding on all branches of government and no less on the legislature and executive. The Constitution requires the courts to ensure that all branches of government act within the law. The three branches of government are indeed partners in upholding the supremacy of the Constitution and the Rule of Law. The judgment in the UDM case does not ultimately decide the issue of whether the High Court has the power to suspend the commencement of legislation and the Court was not called upon the decide whether it had this power. However, the Court assumed that there might be exceptional cases in which the High Court might grant such an order. 26 In doing so, the Constitutional Court emphasised two important points: First, that it was important that people who might be prejudiced by a new Act be given effective remedies: If the High Court is not able to grant an interim order in an urgent case where there is a justifiable fear of irreparable harm, a person who might be prejudiced by an act flowing from the legislation might well be left without an effective remedy. That would be an unfortunate consequence which should not lightly be held to be an inevitable consequence of the provisions of the Constitution. 27 Second, that if an order suspending the commencement of an Act were ever to be granted, it would only ever be justified where it was absolutely necessary : Having regard to the importance of the Legislature in a democracy and the deference to which it is entitled from the other branches of government, it would not be in the interests of justice for a Court to interfere with its will unless it is absolutely necessary to avoid likely

14 irreparable harm and then only in the least intrusive manner possible with due regard to the interests of others who might be affected by the impugned legislation. 28 Against this backdrop, the real difficulty with the Amendment Bill becomes plain. It would make the Constitution provide that even where a person had no other effective remedy and even where it was absolutely necessary that an order suspending an Act be granted, the Court has no power at all to consider or grant the order. Thus, in this situation too, the Amendment Bill proposes a grave and unnecessary restriction of the Court s remedial powers. 1 De Lange v Smuts (supra) at para 70 and Van Rooyen v The State (supra) at para 29, citing R v Valente (1985) 24 DLR (4th) 161 (SCC) at 187 and New National Party of South Africa v Government of the Republic of South Africa and Others 1999 (3) SA 191 (CC) at para 98 (emphasis added). 3 Id at para December 1996 Senate Hearing at 43, (testimony of John Walker); see also, Leo Rennert, Clinton Signs Line-Item Veto, Rocky Mountain News, 10 April 1996, at 2A. 5 Paragraph (IV) (c) and see section on Commonwealth countries below. 6 Paragraph (IV) (d) and see section on Commonwealth countries below. 7 Though the three frameworks discussed briefly here differ in authority, structure, and procedures, a single feature holds for all of them public confidence is high in their ability to safeguard the institutional independence of the judiciary. 8 See: 9 Section 3 Courts Administration Act 1993 (Bold added). 10 Ibid at s 6(1). 11 Ibid at s 7(1). 12 Ibid at s 4(a)-(f). 13 Ibid at s Section 2 Courts Administration Service Act Section 7(2) Courts Administration Service Act The composition of which is set out in Article 153 of the 1992 Ghana Constitution. 17 Ibid at Article 154 (1)(a). 18 Ibid at Article 154 (1)(b). 19 Ibid at Article 125 (4) The Chief Justice shall be responsible for the administration and supervision of the Judiciary. 20 Ghana Constitution Ibid at Article 157 (2) Ghana Constitution Who are nominated by the Judicial Council Article 157 (1)(b) of the Ghana Constitution. 23 Ibid at Article 158 (1). 24 However, the appointed official s terms and conditions of service shall be dictated by the Judicial Council in consultation with the Public Services Commission and with prior approval of the President Article 158 (2) (1) SA 472 (CC). 26 Id at para Id at para Id at para 31.

15 Conclusion This analysis has provided a brief overview of the provisions of the Bills which, in the IBA s view, impermissibly encroach upon the independence of the Judiciary. Of particular concern is that an amendment to the Constitution is sought. Although the Constitution itself provides a process by which it may be amended, it is submitted that amendments must be cautious and limited. The Constitution is a document that is sui generis. It is a living document that provides a set of guidelines that will of necessity have to be amended to reflect the changing values and socio-political changes over time. However, it is precisely for this reason that amendments must not be an attempt at providing short-term solutions for the problems of the day when other mechanisms may be appropriate. Political interference with the Judiciary by the Executive is one of the greatest threats to a liberated society. In order to avoid interference from the Executive, the Judiciary must have its own internal control and administration procedures. This becomes a danger if judicial administration is controlled by the Executive through a government minister. When judges are not internally accountable for their administrative and budget decisions, pressure from the political branches is invited. While the amendments to the Constitution proposed by the Constitution Amendment Bill may appear to be somewhat technical, it is the IBA s opinion that these amendments operate individually and collectively to encroach upon the fundamental principle of the separation of powers and the independence of the Judiciary. These principles are central to the ongoing success of the South African democracy. The IBA fully supports the South African legal profession s efforts to ensure institutional and individual judicial independence continues to be valued by the other branches of government and, most importantly, by the public to whom all of government is beholden. As such, we urge the South African Government to heed the concerns expressed by the local court-community about the pitfalls of the reform proposals.