Judges Will Always Be Political Actors, No Matter How Independent They Are

Article excerpt

BYLINE: Collette Schulz-Herzenberg

To avoid conflicts of interest, where private interests may unduly influence their official decision-making, judges will soon be subject to a new disclosure regime, similar to that of parliamentarians.

Once signed into law, the Judicial Service Commission Amendment Bill establishes a binding code of conduct for judges, requiring them to make annual declarations in a publicly accessible register, and bans them from profiting from outside employment as they are paid a salary for life.

These measures also resonate with recent calls by Chief Justice Pius Langa for the need to sufficiently remunerate judges so as to nullify any incentive to search for additional employment or benefits outside the judiciary.

Such a system will introduce an unprecedented level of accountability for judges in South Africa. It should also enhance the independence of the judicial system and protect judges from criticism. Through disclosure and transparency, judges can show that there are no visible external political and business- related influences on their judicial decisions.

Yet, judges will continue to influence the political arena in a more obscure and indirect fashion. Although judges are traditionally thought of as non-political actors, with their role being limited to dispensing justice, this image is very misleading. Modern judiciaries are both legal and political institutions, and offer judges numerous ways to act "politically".

Judges are sometimes policy makers. Consider the inherently political role of the judiciary in countries like South Africa, where the Constitutional Court has the authority to instruct politicians to enforce or reject certain laws and policy to meet constitutional obligations. Written constitutions such as ours significantly enhance the ability of judges to inform policy - and, as such, act politically.

The courts have exercised their political power in this way through landmark judgments such as the Grootboom case, which dealt with the right to housing, and the Treatment Action Campaign case, where the courts ordered the government to provide pregnant HIV-positive mothers with Nevirapine.

Individual judges can also be political by being subject to external biases from political bodies that may exert influence on the judiciary, such as political parties or Parliament, particularly in the appointment process. In the United States, the life-long appointment of Supreme Court judges by the president has led to a well-recognised pattern of political appointments. In France, judges appointed to the Constitutional Court are often subject to excessive political interference.

Individual judges are also influenced by their own internal biases and prejudices, which can creep into the judiciary through the values and socialisation of its members. Here, it is not how judges are recruited but who is recruited. The demographic and cultural composition of the judiciary during apartheid ensured that most judgments upheld the dominant ideological discourse of racial and gender-based discrimination.

Some judgments even have the capacity to reshape the political landscape, particularly when they arbitrate between political institutions or key political figures. The recent judgment by Judge Chris Nicholson on Jacob Zuma's appeal linked to the arms deal was a case in point. Setting aside its merits, this judgment has set in motion a series of events that have irrevocably changed the political landscape in South Africa. …