Mr Chairman, hon Minister, hon Deputy Minister, our esteemed heads of court, and all of the justice family, we express our pleasure as Members of Parliament that the Constitutional Amendment and the Superior Courts Bills have finally been formally tabled in Parliament.
I could, quite frankly, make the exact same speech in praise of the separation of powers on these Bills today which I made last year. I think it was the hon Minister himself who made the remarks that everything in justice seems to take 10 years.
There are many good reasons for taking time over the laws and policies that emanate from justice, but some things are a little slow. We must express our displeasure at the four portraits we found still hanging in the entrance of the Western Cape High Court yesterday when we were all there for the opening of the Public Works new wing.
We mean no disrespect to the hon Minister and the hon Deputy Minister or the Presidency, but it is the Chief Justice's portrait that ought to be hanging in the Western Cape High Court, as the symbol of the separation of powers. That is especially the case when we are about to make him the formal head of the judiciary.
Our sitting Chief Justice has driven the separation of powers in a way not seen before. I have for some time actively supported the extension of his term of office, because he will ensure institutional independence and, in time, even the proper management of the courts.
But I have always asked that his term be extended by an Act of Parliament, as section 176 requires. It is perhaps a pity that the "Arthur Act", the one written for Judge Chaskalson, has been used, although we will in due course hear the argument. And it is perhaps a pity that there is now a challenge, but we have to adhere to our Constitution.
I return to the Bills and I point to another problem. You would think, hon Minister, that the changes proposed to be made by especially the constitutional amendment are well ventilated and understood after all these years, but that is not so. Our problem is this: Although the concept of an apex court, for example, has been extensively debated over the years in colloquia, in the judiciary's fora - although Judge Arthur Chaskalson said around 2006 that there had been broad agreement since at least 2000 that there should be an apex court - there are, nevertheless, significant legal sectors, not to mention public, who feel that it has not been debated.
I have encountered law lecturers, and many of them, who have not heard of this development at all. When a person as eminent and esteemed as Judge Ian Farlam writes that no reasons have been advanced for extending the jurisdiction of the Constitutional Court to nonconstitutional issues, nor has anything happened to suggest that the present model is wrong, then there is a real communication problem.
He argues that there is a heavy burden of persuasion on those who wish to effect the amendment. I guess that that marketing job should properly have been performed by the hon Minister, even if he is the third Minister in a row to espouse this proposal. But it will now fall to us in Parliament, and this is where we may play our usual useful role. It will fall to us to make sure that everyone who wants to argue for or against an apex court is heard.
It is perhaps useful to start that process by noting, as Judge Farlam reminds us, that the Constitutional Assembly expressly chose a specialist sociopolitical Constitutional Court based on the Western European model, rather than an apex court like the US Supreme Court. But then we must add that the reasons why it did so included the following, and I quote Judge Carole Lewis, whose Oliver Schreiner lecture in 2005 is still the reference document on this issue: In 1994 we adopted a new legal order, with a supreme law, under which the courts are to develop the common law. It was during negotiations the unspoken assumption that old-order judges could not so give effect to the fundamental rights and that the Appeal Court lacked legitimacy. It was also strongly argued that the demography of the country should be represented at the highest adjudicative level and so the Constitutional Court, where only four out of 11 judges were required to be judges at all, before their elevation, came into being with limited jurisdiction.
So let's be honest; it was a sociopolitical court of a special type, and I think that there is therefore room to look at the creation of an apex court.
Its judges are long since appointed from other benches. By 2005, the heads of court were almost all black. Therefore, Judge Lewis argued even in 2005 that the creation of an apex court was urgent.
The truth is that there is a certain amount of straining to find the constitutional dimension to bring matters before that court - a certain artificiality when any distinction between constitutional matters and other matters is undesirable and does not, in fact, exist.
We take no final position on this, because we want to listen to our colleagues and to the public submissions that will serve before the committee before we do so. But should the apex court win through, we have one big proviso: that the sitting judges were not appointed with full jurisdiction in mind. We would need the full range of legal knowledge. The apex court would require perhaps a postponed, perhaps a phased-in, date of inception. And on this, we don't feel inclined to compromise.
I repeat one part of last year's speech - and I regret having to do so - on the Judicial Service Commission, the JSC, because things have gotten worse. But I will cut straight to the constitutional point. We really need to reconsider the composition of the JSC, not only for disciplinary matters, but also for appointments, in order to reduce the particular political element which one must assume is led by the hon Minister.
The Western Cape has suffered, once again, the deprivation of the services of one of its best and brightest - last year Jeremy Gauntlett, now Owen Rogers. How does the JSC justify a position that so-and-so is head and shoulders above the other candidates, but he cannot be appointed because the bench is not transformed, even when his transformation track record is uncontested? I think we should be clear about section 9 of the Constitution. There is no way under the equality provision that you can exclude any of us from eligibility for a post to serve our country on the grounds of race or gender. And if we are all eligible, but positions are left empty for bean-counting affirmative action, that is unconstitutional. The judiciary is not the Public Service and soon the magistracy will not be the Public Service either.
Section 174(2) of the Constitution does not say the judiciary must be broadly representative. Only the Public Service, in section 195, has to be broadly representative and even then broad does not mean bean-counting. The need for broad representation - and not mirror-image demographic representivity - only needs to be considered when judges are appointed.
What "considered" means has been thrashed out over the years; it is not a mystery. We are in favour of the racial and gender transformation of the Bench. But, sir, when places are left empty and there are good South Africans available to serve, there is something wrong and that is not constitutional. It is the JSC that needs to be transformed to conform to constitutional thinking, not the judiciary. And, it is, hon Minister, certainly your responsibility, but I fear it is also your fault. [Applause.]