Fast Facts No 4 April 2006
A
LOOMING CONSTITUTIONAL CRISIS
The justice ministry has revived two of the five judiciary bills which in 2004 were seen as threatening judicial independence. Senior judges say that the current bills severely curtail judicial autonomy. They might also infringe the 1996 Constitution and could provoke a confrontation between the judiciary and the executive.
Judicial independence is again threatened by a reworked constitutional amendment and Superior Courts Bill, both of which vest administrative and budgetary control over the courts in the justice minister. Senior judges attending a colloquium on the bills organised by the General Council of the Bar were reluctant to say whether the proposed laws were unconstitutional. But Advocate George Bizos SC believes that the bills are clearly inconsistent with core provisions of the 1996 Constitution, including:
The justice ministry has revived two of the five judiciary bills which in 2004 were seen as threatening judicial independence. Senior judges say that the current bills severely curtail judicial autonomy. They might also infringe the 1996 Constitution and could provoke a confrontation between the judiciary and the executive.
Judicial independence is again threatened by a reworked constitutional amendment and Superior Courts Bill, both of which vest administrative and budgetary control over the courts in the justice minister. Senior judges attending a colloquium on the bills organised by the General Council of the Bar were reluctant to say whether the proposed laws were unconstitutional. But Advocate George Bizos SC believes that the bills are clearly inconsistent with core provisions of the 1996 Constitution, including:
- an obligation on all organs of state to ‘ensure the independence and impartiality... of the courts’;
- a prohibition on any ‘person or organ of state from interfering with the functioning of the courts’; and
- an injunction on ‘all spheres of government... to exercise their powers ... in a manner that does not encroach on the ... functional or institutional integrity of government in another sphere’.
Hence, in Mr Bizos’s view, if the
justice ministry persists in pushing the current bills through
parliament, it could spark a constitutional crisis in which the
judiciary will be duty-bound to confront the executive on the policy
path that it has chosen.
President Thabo Mbeki has intervened to say the executive has no intention of undermining judicial independence. But if the bills are enacted in their current form, this will be the result. Yet, as Judge Arthur Chaskalson, the recently retired chief justice, told the colloquium, judicial independence is particularly vital in a constitutional state in which the courts have the power to enforce guaranteed rights and to set aside legislation or executive decisions inconsistent with the Constitution. The government is involved in most constitutional cases, all criminal cases, and many civil cases. Hence, provisions which narrow judicial independence are harmful. ‘It’s the early incursions into checks and balances which historically have been shown to open the way for later incursions to be made... Once the erosion of fundamental principles of the Constitution is accepted, somebody else at some time can take it further. So any attempt to do so, nomatter how small, is open to objection.’
—Anthea Jeffery
President Thabo Mbeki has intervened to say the executive has no intention of undermining judicial independence. But if the bills are enacted in their current form, this will be the result. Yet, as Judge Arthur Chaskalson, the recently retired chief justice, told the colloquium, judicial independence is particularly vital in a constitutional state in which the courts have the power to enforce guaranteed rights and to set aside legislation or executive decisions inconsistent with the Constitution. The government is involved in most constitutional cases, all criminal cases, and many civil cases. Hence, provisions which narrow judicial independence are harmful. ‘It’s the early incursions into checks and balances which historically have been shown to open the way for later incursions to be made... Once the erosion of fundamental principles of the Constitution is accepted, somebody else at some time can take it further. So any attempt to do so, nomatter how small, is open to objection.’
—Anthea Jeffery
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