[1] Before the English constitutional upheavals of the 17th century, when sovereigns ruled by what they considered to be divine right, Francis Bacon cautioned English judges in the following terms: ‘Let judges also 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.’

[2] But political systems evolve, and so does the role of the courts in those political systems. Since that time the courts have emerged from under the throne in most western democracies. What has brought them out from under the throne is that the throne itself has increasingly become subject to the rule of law. Far from being circumspect not to ‘check or oppose any points of sovereignty’ part of their role is to ensure that even the power of sovereignty is exercised in accordance with law. They properly fulfil that function, and are seen to be fulfilling that function, only if they are distanced from the influence of that power.

[3] That is what the current controversy is about: maintaining a separation between the courts and the influence of state power. I also need to say what it is not about. It is not about transforming the judiciary. It is not about reining-in errant judges. It is not about whether judges are over-paid, or under-worked. It is also not about whether judges are competent to administer the courts, or about paying the electricity bills of the courts, or providing judges with computers. All of those have been called upon at one time or another to justify the current proposals, and in some respects they are matters that need to be attended to, but the current controversy is about none of them. The controversy is about the appropriate separation of the courts from the influence of state power in a constitutional state.

[4] The controversy arises from five draft Bills concerning the higher courts. I will deal with their history only briefly. Rationalisation of the higher courts in some form has been inevitable since 1994, not least of all to eliminate the geographical anomalies inherited from the previous provincial and homeland structures. Some years ago a Bill directed towards that end was drafted at the instance of the first Minister of Justice appointed under the new order. That Bill was not particularly controversial. On the contrary, it contained much that was positive. But before that draft Bill could be processed there was a general election and the Minister was replaced. The new Minister felt that the rationalisation should be more extensive and a new Bill was drafted. That Bill was rather more controversial but it retained the positive features of the earlier Bill. That second Bill was introduced into Parliament and was referred in the ordinary way to the Parliamentary Committee. There it remained for a considerable time and the judiciary was informed that substantial changes were to be made. Before that occurred there was another general election and a new Minister was appointed, together with a new Deputy Minister who was formerly the chairman of the Parliamentary Committee.

[5] Early last year five new draft Bills emerged from the Department of Justice and Constitutional Development. The various draft Bills, taken together, cover a wide range of issues, many of which are controversial, and discussion of the Bills can be confusing, as it veers from one topic to another. I will not be dealing with all of the many controversies that arise from the various Bills. I intend to deal only with one thread that weaves its way through all the proposals to a greater or lesser extent, which is the assertion of control over the functioning of the higher courts.

[6] Before turning to the Bills I need to develop a little further the role of the courts in a constitutional state. A constitution is the creative legal instrument of the political entity that we refer to as the state. It is the consensus upon which the state is founded and it determines how the state is to function. That consensus might take various forms. Before 1994 our constitution created a state in which the will of the electorate, as represented by parliament, was supreme. Subject to a reservation concerning language rights parliament could do as it pleased and even the courts were subject to its will. In large measure they were indeed ‘lions under the throne’ who were bound to assert the power of the state with little authority to check it. But the constitutional state that was created in 1994 is quite different, and in consequence the role of the courts has been radically altered.

[7] What is central to the present constitutional order is that the state itself is subject to law as it is embodied in the Constitution. It is the Constitution, and not Parliament, that is now supreme, and even the state must act within its constraints. In such a political dispensation the courts are inevitably thrust into a critical role. Without an institution to exact compliance with the law, the law simply does not rule. An institution with authority to hold even the state itself accountable to the law is indispensable. And in order to be effective that role must necessarily be played by an institution that is, and is seen to be, independent of the influence of the other bodies of state. So critical was that to the whole constitutional order that was agreed upon in 1994 that it was to be a principle that was to be unchangeable even by a democratic electorate.

[8] There were necessarily two steps in the process towards creating the new constitutional order. At first there were negotiations between representatives of what were considered to be the major interest groups in our society to agree upon the framework for a democratic election. Only once there was true representation of the electorate could the new consensus finally be arrived at. But during that first phase there was agreement on what were to be the essential elements of the ultimate consensus. They were reflected in 33 core principles that were contained in the interim Constitution of 1994, which had to be carried through to the final Constitution. One of those core principles was that there must be a justiciable Bill of Rights, which had the effect of constraining the power of the state. Another was that state power must be separated amongst the legislature, the executive and the judiciary. And then there was the following crucial principle upon which all the rest depended: ‘The judiciary shall be appropriately qualified, independent and impartial and shall have the power and jurisdiction to safeguard and enforce the Constitution and all fundamental rights.’
That principle was carried through to section 165 of the final Constitution, which includes the following provisions:
‘(1)The judicial authority of the Republic is vested in the courts.
'(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.’

[9] The courts that the interim Constitution of 1994 demanded, and that are demanded by the Constitution of 1996, are required to have two distinct features. First, the courts must be independent. And secondly, they must be impartial. Although they are related, independence and impartiality are not the same thing. Impartiality relates to the state of mind with which the law is applied. It refers to a state of mind that is absent of bias: one that will apply the law without fear or favour. Independence, on the other hand, relates to the condition under which the judicial function is performed. That condition must be one that isolates a court from undue external influence.

[10] There are two facets of independence, one characterising the judge individually, and the other characterising the institution in which he or she functions. The second is important, because it is through an independent institution that a culture of individual independence and impartiality is fostered. Even more important, it is only through an independent institution that confidence can be established in the impartiality of the judiciary as a whole. Confidence in its impartiality is ultimately all that a court has to underpin its authority. As the Constitutional Court said in a recent case, not only must judges discharge their duties impartially and independent of external influence but ‘the courts in which they hold office must exhibit institutional independence,’ which involves ‘an independence in the relationship between the courts and other arms of government.’

In similar vein the Canadian Supreme Court has expressed it as follows: ‘It is generally agreed that judicial independence involves both individual and institutional relationships: the individual independence of a Judge…and the institutional independence of the court or tribunal over which he or she presides, as reflected in its institutional or administrative relationships to the executive and legislative branches of government…The relationship between these two aspects of judicial independence is that an individual Judge may enjoy the essential conditions of judicial independence but if the court or tribunal over which he or she presides is not independent of the other branches of government, in what is essential to its function, he or she cannot be said to be an independent tribunal.’ And later in its judgment the same court said: 'Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements…Both independence and impartiality are fundamental not only to the capacity to do justice in a particular case but also to individual and public confidence in the administration of justice that are essential to its effective operation. It is, therefore, important that a tribunal should be perceived as independent, as well as impartial…’

[11] There is no bright line that demarcates the appropriate degree of separation between the courts and the other branches of government in order for the courts to be truly independent. The appropriate degree of separation is proportionate to the degree to which a court may find itself in confrontation with the other branches of government. That depends in turn upon two considerations. One is the extent to which the state is accountable to law. Separation in a dictatorship is immaterial because there is no potential for such confrontation. Where parliament is supreme there is more potential for confrontation, but only in relation to laws that are in any event of the government’s own making, and it can unmake them if they become too uncomfortable. But the potential for confrontation between the courts and other arms of government, and where clear separation becomes critical, occurs where the state itself is bound by laws that are not necessarily of its choosing, and it cannot easily unmake them. It is then that the potential most exists for a court to come under pressure in its application of laws that constrain a government. At the same time, and this is something that governments often overlook, it is also then that it is most important for courts to be seen to be independent so that decisions that favour the government are accepted as having been reached without external influence. The second consideration that impacts upon the appropriate degree of separation is the level at which the court functions in the court hierarchy and thus the extent to which its decisions are authoritative. It is at the highest level that there is the most potential for confrontation between the courts and the other branches of government, and that potential decreases progressively down the hierarchy.

[12] Thus the greater the commitment to the rule of law, and the higher the particular court is in the hierarchy, the more critical it becomes to ensure a clear separation between the courts and the other arms of the state. That is why, with increasing commitment being given to the rule of law, major democracies have moved increasingly towards affording greater autonomy to their higher courts. The United States Supreme Court, for example, and the Canadian Supreme Court, have almost full control over all aspects of their functioning. In Canada the Federal Courts, which are on the next level, are administered by an independent statutory body (the Courts Administration Service) that is headed by an administrator who is appointed by the Governor-General but is bound to conform with the directives of the Chief Justice. Accordingly to its enabling statute that body was established to ‘enhance judicial independence by placing administrative services at arm’s length from the Government of Canada…’ and to ‘enhance accountability for the use of public money in support of court administration while safeguarding the independence of the judiciary.’

The High Court of Australia administers its own affairs through a Chief Executive and Principal Registrar appointed by the Governor-General upon the nomination of the Court, who must comply with any directions given to him or her by the Court in performing his or her functions and exercising his or her powers.

I have not been able to establish what occurs in all the Australian states but in South Australia the Courts Administration Act of 1993 establishes the State Courts Administration Council as ‘an administrative authority independent of control by executive government’ with the power to ‘provide courts with the administrative facilities and services necessary for the proper administration of justice’.

In a recent address to the General Council of the Bar former Chief Justice Chaskalson drew attention to the features of the courts in some other commonwealth jurisdictions: He pointed out that the Constitution of Ghana provides that the Chief Justice is responsible for the administration and supervision of the judiciary. The Pakistan Supreme Court, according to its website, has the power, with the approval of the President, to make rules for the appointment of its staff and determine their terms and conditions of service. Those rules empower the Chief Justice to exercise the same power in respect of officers and servants of the court as the President may exercise in respect of central government employees. The Indian Constitution makes it clear that the appointment of officers of staff and their conditions of service are under the control of the Chief Justice. The Ugandan Constitution provides that the judiciary shall be self-accounting and it deals directly with the Ministry responsible for finance in relation to its finances.

In all those countries the courts have a great measure of autonomy and in some countries the autonomy of the highest court is almost complete. The position in Canada is particularly instructive because there are many constitutional parallels between that country and ours, and for that reason it is often looked to for guidance in the development of our constitutional jurisprudence.

[13] In this country the move from parliamentary sovereignty to constitutional rule has not yet been translated into greater autonomy for our courts, though there has been some movement in that direction in relation to the Constitutional Court, but no doubt there have been more important priorities to attend to in the transition and until now it has not become an issue. And although the administration of the higher courts is still in the hands of the Department of Justice and Constitutional Development there is a degree of informal autonomy through co-operation between the courts and the department. It ought not to be thought, however, that what exists at present is consistent with the constitutional guarantee of independent courts. The Constitution was imprinted upon an existing order that had much that was inconsistent with its imperatives, as is evident from the many past laws and practices that have been held to be constitutionally invalid. It is not the Constitution that must give way to past practice, but past practice that must give way to the Constitution.

[14] But while the major democracies evolve towards greater institutional separation between the courts and the other branches of government we are about to arrest any such evolution, and to reverse what little has thus far been achieved. The Constitution is to be amended so as to effectively qualify what is meant by ‘independent courts’. And once that has been qualified the Superior Courts Bill will be enacted, which will assert centralised control, mainly by the executive, over every aspect of the functioning of the courts, other than ‘the adjudication of a matter’ in a court.

[15] The Constitution Fourteenth Amendment Bill and the Superior Courts Bill are of most immediate concern because they have already been introduced into Parliament. But the other three draft Bills, which remain in the wings for the moment, should not be altogether overlooked, because their contentious features are subject to the same objection. Two of those Bills deal with judicial conduct. Let me say immediately that the judiciary has for a number of years been urging the introduction of a formal ethical code and a mechanism for bringing errant judges to account, and it is becoming increasingly urgent for that to be done. Ten years ago the judges on the Judicial Service Commission took the initiative to have a formal code of ethics and a complaints mechanism put in place. As a result a formal code of ethics was compiled and approved of by judges. The department also prepared and submitted to the Judicial Service Commission a proposed system for dealing with complaints, to be administered by the judiciary, which was approved by the Judicial Service Commission. A Bill was consequently introduced into Parliament but it stagnated in the Parliamentary Committee. The proposal that has now emerged in its stead envisages a code of ethics being prepared by a body that includes executive appointments, and a mechanism for dealing with complaints in which executive appointments will play a role, and that is where the objection lies. That judges are accountable for their conduct, and that they should be held accountable for their conduct, is not in issue. What is in issue is only to whom they should account. It is inconsistent with their independence that they should be held to account to appointees of the executive.

The other Bill introduces a system for initial and continuing judicial education. The judiciary itself, with assistance from Canada, took the initiative many years ago to conduct educational seminars for new and existing judges, and at the same time pressed for a formal and properly funded education system. After much investigation the department presented a report in which it accepted that judicial education should be conducted by judges for judges, and it proposed a structure within which that could be done. The draft Bill that emerged last year bore little relationship to the work that had until then been done, but instead vested judicial education in a state institution that was effectively under the control of the Minister, and again, that is where the objection lies. That judges should be open to continuing education is not in issue. What is in issue is only at whose hands they should be educated.

[16] Returning to the two Bills that are of more immediate concern I will deal with them in the order in which they will be considered by Parliament. The first is the Constitution Fourteenth Amendment Bill. Although this will be the fourteenth amendment to the Constitution the earlier amendments were mainly technical and uncontentious. This will be the first amendment to fundamental elements of the constitutional structure. If the Bill is passed the Constitution will be amended in four principal respects. First, the authority of the Constitutional Court will be increased with a corresponding decrease in the authority of the Supreme Court of Appeal. Secondly, the Judges President and the Deputy Judges President of the various divisions of the High Court (there will be at least ten such divisions) will be appointed by the President. (At present those appointments are made, in effect, by the Judicial Service Commission.) Thirdly, no court will be entitled to make an order suspending the commencement of an Act of Parliament or of a provincial council. (At present a court is capable of suspending the commencement of a statute while it determines whether the statute is constitutionally lawful.) Each of those proposals is controversial in itself and deserving of individual attention, but this talk is confined to the fourth principal aspect of the amending Bill.

[17] You will recall that section 165 of the Constitution vests the judicial authority of the Republic in the courts, and provides that the courts are independent and subject only to the Constitution and the law. Two new subsections are now to be added to that section, which have the effect of qualifying what precedes them. The first new subsection provides that the Chief Justice (who is appointed by the President) is the ‘head of the judicial authority’ and ‘exercises responsibility over the development of norms and standards for the exercise of the judicial functions of all the courts, other than the adjudication of any matter before a court of law.’ The second provides that the Minister is to exercise authority over the administration and budget of all courts.

[18] That amendment to the Constitution paves the way for the enactment of the Superior Courts Bill. The fact that the Superior Courts Bill will not be presented until the Constitution is amended suggests that the government is concerned that parts of that Bill will conflict with the Constitution in its present form and could be declared to be invalid. The Superior Courts Bill fills in the detail of what the constitutional amendment is intended to achieve. It is a lengthy document. Many of its provisions are contentious for reasons other than those with which I am now concerned, and there are also many uncontentious provisions. I will deal only with those provisions that impact upon the independence of the courts, and I will deal with them in six categories.
• First, the Bill obliges the Chief Justice to issue ‘written protocols or directives…to judicial officers…in respect 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’, and judicial officers must comply with those directives or protocols. Such directives or protocols may be issued only if they have the majority support of a forum of judicial officers convened by the Chief Justice, at least a third of whom must be women, and which must include the heads of all the higher courts.
• Secondly, it creates an ‘Office of the Chief Justice’ that is staffed by an Executive Secretary appointed by the Minister and other departmental staff. The only role of the Chief Justice in their appointment is to be consulted. The office of the Chief Justice must, amongst other things, administer the Chief Justice’s ‘responsibility over the judicial functions’ that are assigned to him by the Constitution, and to establish staff in all the higher courts to compile periodic statistics relating to the functioning of the courts and the performance of judicial duties by the judicial officers, participate in the compilation of the budgets of the courts by the department, and record the recess periods of the courts and the leave periods and any other absences from courts by all judicial officers.
• Thirdly, the Minister has full control over the budget of the courts, though he or she must consult with the Chief Justice on the funds required for the administration and functioning of the courts.
• Fourthly, the Minister has full control over the administration of all courts. All staff required to administer the courts are appointed by the Minister and are subject to the laws governing the civil service and to the directions of the Director General of the department. (Provision is again made for consultation with the head of the court concerned but no more than that.)
• Fifthly, the Minister is authorised to make the rules for the conduct of litigation in the courts and for all procedures and processes relating to the court function and for ‘generally any matter which may be necessary or useful to be prescribed for the proper despatch and conduct of the functions’ of the courts. The Minister is required only to receive and consider the advice of an Advisory Board (which includes members of the judiciary and the legal profession) on those issues but is not bound to follow that advice.
• Sixthly, the minister may make regulations dealing, amongst other things, with the furnishing of periodical returns of statistics relating to any aspect of the functioning and administration of courts and the performance of judicial functions; any matter that may be necessary or expedient to prescribe regarding the functioning of the Office of the Chief Justice; and periods of absence of judicial officers from courts.

[19] In assessing what all this means you need to cast your mind back to a recurring phrase. That phrase is ‘other than the adjudication of any matter before a court of law’. It refers to the process of deciding a particular case. It is only in relation to the ‘adjudication of [a] matter’ that the courts will be independent of external control. In other words, independence is restricted to what the Canadian Supreme Court referred to as the ‘individual independence of a judge’. There will be two forms of control over the functioning of the courts:
• First, there will be a hierarchy in the courts, comprising the Chief Justice and a body of judges selected by him or her, which is to include the heads of the higher courts. The Chief Justice, with the concurrence of a majority of that body, must set what are referred to as ‘norms and standards for the exercise of the judicial functions’ other than ‘the adjudication of a matter’, and they must be obeyed by all courts. It is not clear what is meant by ‘norms and standards’ for the performance of the judicial function, but there has never been a hierarchy in the courts that exercises control over the performance by other judges of judicial functions. That is of concern in itself but I do not intend now to dwell on it.
• Secondly, and this is the source of most of the controversy, the courts, at the highest level, will have no administrative autonomy, and no autonomy in relation to court procedures. In both respects that will be under the sole control of the Minister. At an administrative level the courts will be an adjunct of the civil service. Even the Chief Justice will have imposed upon him or her an ‘Office’ that is administered under the control of the Minister. The higher courts, at every level, will function in an environment in which everything is subject to Ministerial control. The courts will be dependent for their resources upon the Minister and the civil service. All employees of the courts will be appointed by the Minister and answerable only to the Minister. Departmental officials will peer over the shoulders of judges to record, or to require the judges to record, what they do, when and how they do it, when they are in the office and when they are not, and so on. And at a functional level the procedures that are applied by the courts when dealing with litigation will all be determined by the Minister. In short, there will be no institutional autonomy at all.

[20] Central to the two Bills is the idea that courts are ‘independent’ so long as no external influence is brought to bear upon the ‘adjudication of a matter’. Nothing is required beyond that. Institutional independence is considered to be superfluous. Courts may function within the executive structure (and within the constraints of ‘norms and standards’ that are set by a select group of judges) but they are nonetheless independent state bodies, according to that view, provided only that the judges are individually independent and impartial when they ‘adjudicate a matter’. On that view the constitution is little more than an instruction to judges individually to remain independent and impartial when deciding cases. There is no structural protection of the independence of the institution.

[21] That is the meaning of independence that government functionaries have in mind when they say, as they often do, that judges should be left to do what they do best, which is to decide cases, and that others should administer the courts. But in doing so they miss the point. The point is not whether judges should administer the courts themselves, just as the Minister undoubtedly does not expect herself to administer the courts herself, but is rather to whom should the administrators be answerable. Should they be answerable to the courts, or should they be answerable to the executive?

[22] Questions that immediately come to mind are these: If that is what was meant by courts that are ‘independent and impartial’ when consensus was reached in 1994, and again in 1996, why is it necessary to amend the Constitution at all? But if that is not what was meant then why are we retreating from that consensus? Was something overlooked in 1994 and again in 1996? And has it also been overlooked by the Ghanaians, and the Canadians, and the Indians, and the Australians, and the Pakistanis, all of whom recognise that ‘independent courts’ are courts that are institutionally independent of control by the other branches of government? Nobody has yet answered those questions satisfactorily, and indeed, there is no satisfactory answer if one is serious about the rule of law. That is why the proposals are controversial.

[23] What is important to bear in mind is that that narrow view of what it means to be an independent court is to be entrenched in the Constitution for the future. Inroads upon constitutional protection, particularly in relation to constraints upon power, are unlikely ever to be reversed. The controversy is not about judges at all. It is about the preservation of the Constitution. That is an important civic issue.