No wrong questions, but JSC hearings need a standard

Hearings of the Judicial Service Commission (JSC) in April were an unedifying spectacle, as Ziyad Motala correctly points out in “Casac wrong to think political values can be removed from judicial appointments” in the Sunday Times on June 20. 

He suggests that, though the questioning was indeed horrible, it did not rise to the level of being challengeable in a court. He suggests politics is the answer to an essentially political process, and proposes trying to persuade the president to reject the nominees or making a case to the political actors to reconstitute the JSC.

The president has no power to reject the nominees of the JSC in most cases, and absent the politicians taking the lead, the court application by the Council for the Advancement of the SA Constitution (Casac) is the only game in town that squarely addresses the mess that unfolded on the chief justice’s watch.

Casac’s application charges that during the April interviews, the JSC failed in its constitutional role by not asking questions to test the candidates’ suitability for judicial office. The rationality and procedural fairness of the JSC’s decisions are contested.

A distinction is drawn between questions and allegations, and the JSC is criticised for failing to “pre-screen” adverse comments about candidates. It’s a fairly standard argument used every day when challenging bad decision-making by the state — the JSC took into account things it should not have and did not take into account things that it should in deciding who to recommend for appointment.

However, the argument goes one step further. Casac also argues that the JSC must flesh out appointment criteria from the constitutional requirements found in sections 174(1) and (2). Casac argues that the lack of appointment criteria and guidelines leads to unfairness to the candidates.

We would agree. Our position regarding the JSC process is that the absence of sufficiently comprehensive appointment criteria is a fundamental weakness in the judicial appointments system, and is at the root of many of the other problems we observe in the JSC process.

As Motala correctly points out, questions about more technical skills must be suffused “with other predicates, including transformation, gender representivity, temperament, the legal and political philosophies of the nominee and the interpretive rules a judge uses in giving the constitution meaning”.

Questions that go to what the candidate’s views are in this regard are particularly important in interviewing judges for higher courts, and of course the Constitutional Court.

The JSC will occasionally ask a question or series of questions that allows candidates to spell out their views.

More often, the politicians in particular ask questions that range in purpose from ventilating some last-minute complaint from the public to demonstrating their concern at women candidates’ “temperament”, which appears to be an issue when a judge distinguishes herself from a doormat.

This is not testing candidates’ political views, which of course will shade their decisions.

Motala suggests the only way “for Casac to prevail is we have consensus on a template of what acceptable questions are, which is … crazy”. Such a template would indeed need to be more flexible than that in any normal job interview.

But that does not mean it cannot exist at all. International best practice would tend to favour our argument for clear and consistently applied criteria.

Tilley is co-ordinator of Judges Matter. Ndlebe is a researcher at the University of Cape Town’s Democratic Governance & Rights Unit.