The decision by the Western Cape High Court to set aside the National Assembly’s designation of impeached former judge John Hlophe to the Judicial Service Commission should serve as a reminder to MPs and other public representatives to consider seriously the decisions they make on behalf of citizens.
In a landmark case, the court declared unconstitutional and invalid the National Assembly’s designation of Hlophe as its representative on the JSC.
Issues canvassed by the court included whether the assembly had properly exercised its right and duty in considering if Hlophe was suitable for designation to the JSC. There was also the question of whether he was suitable for appointment to the JSC, even after continuing to make disparaging comments about the judicial system.
Parliament has no specific definition of what constitutes a “fit and proper” person for nomination to the JSC. But the court found that the National Assembly had “fundamentally misunderstood the nature of its power” in choosing nominees. In terms of the ruling, a candidate’s mere membership of the assembly, while necessary, is not sufficient grounds.
Predictably, there have been those who have disagreed with the court’s decision, arguing that it may have overreached.
We would beg to differ, because the courts are a vital pillar of our constitutional architecture. They are part of a suite of checks and balances which oversee the exercise of power by both the executive and the legislature.
While criticism of judicial decisions is part of any democracy worth the name, it is important that courts remain strong and independent, not susceptible to public or political pressure. What buttresses the judicial system is the public’s confidence in the court’s independence and impartiality.
If people who are appointed to a structure such as the JSC, which nominates judicial officers, are of questionable character it is obvious that that would undermine the judiciary’s legitimacy, public trust and respect.
The silver lining out of the Hlophe controversy is that the court ruling will go a long way to guiding MPs making future nominations. Members will have to keep in mind their duty to consider the character and quality of those they nominate — beyond the mere fact that they are MPs, or that they have been nominated by their political parties.
Implied in the court’s decision is that the National Assembly’s choice of nominees should not be a mindless administrative ritual, but one over which MPs must exercise due discretion. It is a task that must be undertaken with the necessary seriousness, and which should extend not just to JSC nominations but to the rest of parliament's work.
In the Hlophe case, it would have been the height of irony that an impeached judge should end up being party to, and influencing, the selection of the nation’s judges, who are expected to be people whose character is beyond reproach. His membership would have risked eroding the integrity of the JSC and by extension the judiciary itself.
The court’s finding should be instructive to not just our national legislators, but to other public representatives charged with making important decisions on behalf of citizens, and for our democracy.
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