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ABSTRACT
In October 2015, by majority judgement, the Indian Supreme Court found the Constitutional (99th Amendment) Act, 2014 and the National Judicial Appointments Commission Act, 2014 to be unconstitutional. In a judgement that runs to over a thousand pages, certain judges reasoned that judicial independence was part of the basic structure of the Constitution and, as such, not susceptible to abrogation by Parliament. A majority of the judges held that the commission-based appointments process in the legislation would impinge on judicial independence. Thus, the legislation had to be struck down. Drawing on developments in South Africa, this article argues that, whilst aspects of the Indian Supreme Court’s judgement were motivated by legitimate concerns about executive dominance over judicial appointments, the idea that judicial primacy over the process is the only means through which independence can be assured is flawed. The judgement was a missed opportunity to interrogate the meaning of judicial independence and to consider how a more transparent process could act to protect independence whilst also enhancing judicial accountability, legitimacy and diversity.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes
1 See Jan van Zyl Smit, ‘Judicial Appointments in the Commonwealth: is India Bucking the Trend?’ (UK Constitutional Law Blog, 7 March 2016) < https://ukconstitutionallaw.org/2016/03/07/jan-van-zyl-smit-judicial-appointments-in-the-commonwealth-is-india-bucking-the-trend/> accessed 12 November 2017.
2 Guideline II.I. <http://www.cpahq.org/cpahq/cpadocs/Latimer%20House%20Principles.pdf> accessed 12 November 2017.
3 ‘Recasting the Judicial Appointments Debate’ (2014) Centre for Law and Policy Research Working Paper No 1/2014 <http://www.nja.nic.in/P-950_Reading_Material_5-NOV-15/3.Judicial%20Appointments%20Debate.pdf> accessed 12 November 2017.
4 See, for example, Prashant Bhushan, ‘Securing Judicial Accountability: Towards an Independent Commission’ (2007) 42(43) Economic and Political Weekly 14; Markandey Katju, ‘Let’s Make Judges Selection More Transparent’ The Hindu (Chennai, 3 January 2013) <http://www.thehindu.com> accessed 12 November 2017.
5 Supreme Court Advocates-on-Record Association and Others v Union of India and Others (NJAC judgment) WP (Cl) 13/2015 (Supreme Court, 16 October 2015).
6 See Raju Ramachandran, ‘Judicial Independence and the Appointment of Judges’ DAKSH Fourth Annual Constitution Day Lecture, Indian Institute for Human Settlements (IIHS) Auditorium, 28 November 2015 <http://blog.dakshindia.org/2015/12/judicial-independence-and-appointment.html> accessed 12 November 2017.
7 Indira Jaising, ‘National Judicial Appointments Commission: A Critique’ (2014) 49(35) Economic and Political Weekly 16, 18.
8 Ibid.
9 See the discussion of the judgement in section 4 below. For a summary and critique, see Arghya Sengupta, ‘Judicial Primacy and the Basic Structure: A Legal Analysis of the NJAC Judgment’ (2015) 50(48) Economic and Political Weekly 27.
10 According to 2016 World Bank data. See, <http://databank.worldbank.org/data/download/GDP.pdf> accessed 12 November 2017. South Africa was placed 38 in this ranking.
11 See further Granville Austin, Working a Democratic Constitution (OUP 2003) ch 25; Morné Olivier, ‘The Selection and Appointment of Judges’ in Cora Hoexter and Morné Olivier (eds), The Judiciary in South Africa (Juta 2014) 116, 117–8.
12 Though not consistently so – see, for example, Anashri Pillay and Murray Wesson, ‘Recession, Recovery and Service Delivery: Political and Judicial Responses to the Financial and Economic Crisis in South Africa’ in A Nolan (ed), Economic and Social Rights after the Financial Crisis (CUP 2014) 335 and the text to n 64 below.
13 See Cora Hoexter and Morné Olivier, ‘The Judicial Service Commission’ in Cora Hoexter and Morné Olivier (eds), The Judiciary in South Africa (Juta 2014) 154 and 169–70.
14 The African National Congress, South Africa’s ruling party since 1994.
15 Richard Calland, The Zuma Years – South Africa’s Changing Face of Power (Zebra Press 2013) ch 11.
16 See further, John McEldowney, ‘One-party Dominance and Democratic Constitutionalism in South Africa’ [2013] Journal of South African Law 269; Samuel Issacharoff, ‘Constitutional Courts and Consolidated Power’ (2014) 62 American Journal of Comparative Law 585, 604–08 especially; Mark Tushnet, ‘Preserving Judicial Independence in Dominant Party States’ (2015–2016) 60 New York Law School Law Review 107.
17 See Morné Olivier, ‘The Selection and Appointment of Judges’ (n 11) 152. See also Hoexter and Olivier, ‘The Judicial Service Commission’ (n 13) 172 on calls for, and proposals regarding reform of the JSC.
18 See, for instance, the statement made by BR Ambedkar, a principal drafter of the Constitution who went on to become India’s first Law Minister, cited by Judge Khehar in the NJAC judgment (n 5) [30] (The Reference Order).
19 Ibid.
20 The Constitution of India 1950, art 124.
21 AIR 1982 SC 149.
22 The basic feature or structure doctrine may be traced to Kesavananda Bharati Sripadagalvaru and Ors v State of Kerala and another AIR 1973 SC 1461. In that case, the Court held that the legislative power to amend the Constitution was limited to the extent that an amendment could not violate one of the basic features or the basic structure of the Constitution. The Court found that the separation of powers amongst legislative, executive and judicial arms of government were basic features of the Constitution. In the later case of State of Rajasthan v Union of India AIR 1977 SC 1361, the Court found that the independence of the judiciary was a basic feature of the Constitution. See, further, O Reddy, The Court and the Constitution of India: Summits and Shallows (OUP 2008) 61–64.
23 First Judges Case (n 21) [30].
24 Ibid. In reaching this conclusion, Bhagwati J referred to Ambedkar’s description of a transfer of power to the CJ as a ‘dangerous proposition’ – First Judges Case (n 21) [29].
25 First Judges Case (n 21) [29].
26 Ibid.
27 Supreme Court Advocates-on-Record Association v Union of India (1993) 4 SCC 441 (Second Judges Case) [41] (Verma J for the majority).
28 Ibid [37] (Verma J).
29 Ibid [40] (Verma J).
30 Ibid [41] (Verma J).
31 Special Reference No 1 of 1998 (1998) 7 SCC 729. The government of India was not seeking to overturn the decision in the Second Judges case but merely asked for clarification on matters of process. See further, Arghya Sengupta, ‘Judicial Independence and the Appointment of Judges to the Higher Judiciary: A Conceptual Enquiry’ (2011) 5 Indian Journal of Constitutional Law 99, 103–4.
32 Working paper (n 3) 3–4.
33 Ibid 3. See also Reddy (n 22) 305.
34 Austin (n 11) 517.
35 Ibid.
36 These and other events are described in detail by Austin (n 11) 517–21.
37 Ibid 521–3.
38 Reddy (n 22) 304. Reddy argues that, by this time, the Supreme Court had realised the ‘great mistake it had committed in the First Judges Case’.
39 Working paper (n 3) 4.
40 SP Sathe, ‘Appointment of Judges: The Issues’ (1998) 33(32) Economic and Political Weekly 2155, 2157.
41 Ibid.
42 Supriya Routh, ‘Independence Sans Accountability: A Case for Right to Information against the Indian Judiciary’ (2014) 13 Washington University Global Studies Law Review 321, 342. See also Bhushan, ‘Securing Judicial Accountability: Towards an Independent Commission’ (n 4); Abhinav Chandrachud, ‘The Insulation of India’s Constitutional Judiciary’ (2010) 45(13) Economic and Political Weekly 38.
43 Nirmalendu Bikash Rakshit, ‘Judicial Appointments’ (2004) 39(27) Economic and Political Weekly 2959, 2960. See also Prashant Bhushan, ‘The Dinakaran Imbroglio: Appointments and Complaints against Judges’ (2009) 44(41–42) Economic and Political Weekly 10.
44 Prashant Bhushan, ‘Scuttling Inconvenient Judicial Appointments’ (2014) 49(28) Economic and Political Weekly 12.
45 Ibid 12–13.
46 Abhinav Chandrachud, ‘Age, Seniority, Diversity’ (2013) 30(8) Frontline <http://www.frontline.in/cover-story/age-seniority-diversity/article4613881.ece> accessed 12 November 2017. See also Chandrachud, The Informal Constitution: Unwritten Criteria in Selecting Judges for the Supreme Court of India (OUP 2014) 257–8.
47 JK Krishnan, ‘The Rights of the New Untouchables: A Constitutional Analysis of HIV Jurisprudence in India’ (2003) 25 Human Rights Quarterly 719, 791–819; S Shankar and P Mehta, ‘Courts and Socioeconomic Rights in India’ in V Gauri and D Brink (eds), Courting Social Justice: Judicial Enforcement of Social and Economic Rights in the Developing World (CUP 2008) 146; Anashri Pillay, ‘Judicial Activism and the Indian Supreme Court: Lessons for Economic and Social Rights Adjudication’ in Liora Lazarus, Christopher McCrudden and Nigel Bowles (eds), Reasoning Rights: Comparative Judicial Engagement (Hart Publishing 2014) 339.
48 Nick Robinson, ‘Structure Matters: The Impact of Court Structure on the Indian and U.S. Supreme Courts’ (2013) 61 American Journal of Comparative Law 173, 184–86 and 188.
49 Former Director of the National Judicial Academy and former Vice-Chancellor of the National Law School of India University (Bangalore).
50 Mohan Gopal, ‘Supreme Court and the Aam Aadmi’ (2014) 30(8) Frontline <http://www.frontline.in/cover-story/supreme-court-and-the-aam-aadmi/article4619585.ece> accessed 7 November 2017.
51 Ibid. See also Balakrishnan Rajagopal, ‘Pro-Human Rights but Anti-Poor? A Critical Evaluation of the Indian Supreme Court from a Social Movement Perspective’ (2007) 18 Human Rights Review 157, 160.
52 Robinson (n 48) 185. See also S Muralidhar, ‘Economic, Social and Cultural Rights: An Indian Response to the Justiciability Debate’ in Yash Ghai and Jill Cottrell (eds), Economic, Social and Cultural Rights in Practice: The Role of Judges in Jmplementing Economic, Social and Cultural Rights (Interights 2004) 23, 31.
53 Arghya Sengupta, ‘Inconsistent Decisions’ (2013) 30(8) Frontline <http://www.frontline.in/cover-story/inconsistent-decisions/article4613887.ece> accessed 12 November 2017.
54 Bhushan, ‘The Dinakaran Imbroglio: Appointments and Complaints against Judges’ (n 43) 12. See also Jaising (n 7) 19.
55 Gopal (n 50).
56 Ramachandran (n 6).
57 Gopal (n 50).
58 Olivier, ‘The Selection and Appointment of Judges’ (n 11) 147.
59 See Jaising (n 7) 18; M Ershadul Bari, ‘Collegium System of Appointment of Superior Courts’ Judges Established in India by Way of Judicial Interpretation and the Aftermath: A Critical Study’ (2013) 18 Lawasia Journal 1, 16.
60 Jaising (n 7) 18.
61 See Jaising (n 7) 18; Khagesh Gautam, ‘Constitutionality of the National Judicial Appointments Commission: the Originalist Argument’, <http://www.nja.nic.in/P-950_Reading_Material_5-NOV-15/4.%20Khagesh%20Gautam.pdf> accessed 12 November 2017; C Raj Kumar and Khagesh Gautam, ‘Questions of Constitutionality – The National Judicial Appointments Commission’ (2015) 50(26–27) Economic and Political Weekly 42.
62 To enhance continuity on the bench for instance – see Pillay, ‘Judicial Activism and the Indian Supreme Court: Lessons for Economic and Social Rights Adjudication’ (n 47) 354.
63 Jaising (n 7) 18.
64 Smaran Shetty, ‘Questioning the National Judicial Appointments Commission Act, 2014’ (Law and Other Things, 20 August 2014) <https://lawandotherthings.blogspot.co.uk/2014/08/questioning-national-judicial.html> accessed 12 November 2017. See also Manoj Mate, ‘A Challenge to Judicial Independence in India: The National Judicial Appointments Council (NJAC)’ (Jurist, 23 July 2015) <http://www.jurist.org/forum/2015/07/manoj-mate-judicial-independence.php> accessed 12 November 2017.
65 Jaising (n 7) 18.
66 Kumar and Gautam (n 61).
67 Shetty (n 64).
68 See the ‘residuary clause’ – section 11(2)(c). See also Jaising (n 7); Shetty (n 64).
69 Jaising (n 7) 18. See also Editorial, ‘Sunlight is the Best Disinfectant’ (2010) 45 (5) Economic and Political Weekly 6.
70 See, for instance, Pratap Bhanu Mehta, ‘A Lesser Evil: Collegium has Grave Deficiencies, but it Compromises Structural Independence of Judiciary Less’ The Indian Express (17 October 2015) <http://indianexpress.com/article/opinion/columns/a-lesser-evil/ > accessed 12 November 2017; Ajoy Ashirwad Mahaprashasta, ‘The NJAC is a Cure Worse than the Disease’ interview with Prashant Bhushan (13 November 2015) Frontline <http://www.frontline.in/cover-story/the-njac-is-a-cure-worse-than-the-disease/article7809371.ece> accessed 12 November 2017 (Bhushan appeared for the Supreme Court Advocates-on-Record Association in the case).
71 For example, Gautam Bhatia, ‘The NJAC Judgment and its Discontents’ (Indian Constitutional Law and Philosophy Blog, 16 October 2015) <https://indconlawphil.wordpress.com/2015/10/16/the-njac-judgment-and-its-discontents/> accessed 12 November 2017; Chintan Chandrachud, ‘Debating the NJAC Judgment of the Supreme Court of India: Three Dimensions’ (UK Constitutional Law Blog, 3 November 2015) <https://ukconstitutionallaw.org/2015/11/03/chintan-chandrachud-debating-the-njac-judgment-of-the-supreme-court-of-india-three-dimensions/> accessed 12 November 2017; Sengupta, ‘Judicial Primacy and the Basic Structure: A Legal Analysis of the NJAC Judgment’ (n 9); Arghya Sengupta, ‘Appointment of Judges and the Basic Structure Doctrine in India’ (2016) 132 Law Quarterly Review 201 (Sengupta appeared for the Union of India in the case); Rehan Abeyratne, ‘Upholding Judicial Supremacy in India: The NJAC Judgment in Comparative Perspective’ (2016–2017) 49 George Washington International Law Review 569.
72 Bhatia (n 71). See also Chintan Chandrachud (n 71); Sengupta, ‘Judicial Primacy and the Basic Structure: A Legal Analysis of the NJAC Judgment’ (n 9); Sengupta, ‘Appointment of Judges and the Basic Structure Doctrine in India’ (n 71).
73 NJAC judgment (n 5) (Khehar J) [158] (Order on Merits).
74 Discussed in the section on ‘Historical Background to the Judicial Appointments Process in India’ above.
75 NJAC judgment (n 5) (Khehar J) [65]–[72] and [80] (Reference Order).
76 Ibid (Khehar J). [150] (Order on Merits).
77 Ibid (Khehar J) [156] (Order on Merits). In addition, as art 124A(1)(d) did not set out the qualifications for eminence, leaving the selection of these two individuals to the Chief Justice, Prime Minister and Leader of the Opposition in Parliament, it was found to be too vague to withstand constitutional scrutiny – (Khehar J) [182] (Order on Merits).
78 NJAC judgment (n 5) (Khehar J) [167] (Order on Merits).
79 Ibid [169].
80 Ibid [178].
81 See ibid (Lokur J) [484]–[86], [491], [509] and [523]; (Goel J) [19.4] and [19.13]; (Joseph J) [909].
82 Ibid [910]–[11].
83 Ibid (Lokur J) [188].
84 Ibid (Chelameswar J) [106] and [119].
85 Ibid [98].
86 Ibid [98] and [104].
87 Ibid [99]. As the majority had found the Amendment to be unconstitutional, Justice Chelameswar did not feel the need to come to a conclusion on the constitutionality of the provision regarding the veto power of any two members of the NJAC which was contained in the Act. He did note, however, that he saw nothing ‘inherently illegal’ in this inclusion of this veto power [116].
88 Ibid (Chelameswar J) [108].
89 Most clearly expressed by ibid (Lokur J) [480].
90 Chintan Chandrachud (n 71).
91 NJAC judgment (n 5) (Lokur J) [492].
92 Chintan Chandrachud (n 71).
93 Ibid.
94 See Sengupta, ‘Judicial Primacy and the Basic Structure: A Legal Analysis of the NJAC Judgment’ (n 9) 28–9.
95 NJAC judgment (n 5) [150].
96 Ibid [18.9] and [18.12].
97 Sengupta, ‘Judicial Primacy and the Basic Structure: A Legal Analysis of the NJAC Judgment’ (n 9) 28–9.
98 NJAC judgment (n 5) (Lokur J) [275].
99 Ibid [356].
100 Sengupta, ‘Judicial Primacy and the Basic Structure: A Legal Analysis of the NJAC Judgment’ (n 9) 28.
101 Ibid 30.
102 Abeyratne (n 71) 610.
103 Alok Prashanna Kumar, ‘The Crisis in the Judiciary’ (2017) 52(20) Economic and Political Weekly 10.
104 See Dhananjay Mahapatra, ‘Supreme Court Collegium ends 1-year impasse by finalizing judicial appointment procedure’ Times of India (15 March 2017) <https://timesofindia.indiatimes.com/india/supreme-court-collegium-ends-1-year-impasse-by-finalising-judicial-appointment-procedure/articleshow/57639152.cms> accessed 12 November 2017; Bhadra Sinha, ”Headway in New Memorandum of Procedure for Judges” Selection’ Hindustan Times (3 March 2017) <https://www.hindustantimes.com/india-news/headway-in-new-memorandum-of-procedure-for-judges-selection/story-qyQSwh4bdI6M3WHMWItNGK.html> accessed 12 November 2017.
105 Maneesh Chhibber, ‘Memorandum of procedure stuck, collegium starts to clear names for HCs’ The Indian Express (10 April 2017) < http://indianexpress.com/article/india/memorandum-of-procedure-stuck-collegium-starts-to-clear-names-for-cjs-4606893/> accessed 12 November 2017.
106 François Du Bois, ‘Judicial Selection in Post-Apartheid South Africa’ in Kate Malleson and Peter Russell (eds), Appointing Judges in an Age of Judicial Power (Toronto University Press 2006) 280, 283.
107 Hugh Corder, ‘The Appointment of Judges: Some Comparative Ideas’ (1992) 2 Stellenbosch Law Review 207, 226.
108 Geoffrey Bindman, ‘Preliminary Report on South Africa’ (1987) 38 International Commission of Jurists Review 31, 46. See also Olivier, ‘The Selection and Appointment of Judges’ (n 11) 118–20.
109 Etienne Mureinik, ‘A Bridge to Where? Introducing the Interim Bill of Rights’ (1994) 10 South African Journal on Human Rights 31, 32.
110 S 174(2).
111 S 174(3).
112 Ibid.
113 S 174(4).
114 S 174(6).
115 Du Bois (n 106) 285.
116 Koos Malan, ‘Reassessing Judicial Independence and Impartiality against the Background of Judicial Appointments in South Africa’ 2014 (17) Potchefstroom Electronic Law Journal 1965, 1968–69.
117 Ibid.
118 See, further, Hoexter and Olivier, ‘The Judicial Service Commission’ (n 13) 167–8. They note that the preponderance of executive members is inconsistent with the trend with respect to the composition of commissions in African states and the rest of the world.
119 For a more detailed summary of the process, see Penny Andrews, ‘The South African Judicial Appointments Process’ (2006) 44 Osgoode Hall Law Journal 565, 568–9; Olivier, ‘The Selection and Appointment of Judges’ (n 11) 123–31.
120 See, for instance Jeffrey Jowell, ‘The Appointment and Accountability of Judges’ Helen Suzman Foundation lecture <http://hsf.org.za/siteworkspace/hsf-justice-lecture.pdf> accessed 12 November 2017. See also Andrews (n 119) 569.
121 A full discussion of the meaning of diversity and arguments for its importance are beyond the scope of this article. See, further, Morné Olivier, ‘A Perspective on Gender Transformation of the South African Judiciary’ (2013) 130 South African Law Journal 448; Erika Rackley, ‘In Conversation with Lord Justice Etherton: Revisiting the Case for a More Diverse Judiciary’ [2010] Public Law 655.
122 See Du Bois (n 106) 287; P De Vos, ‘Judicial transformation: South Africa’s appalling non-commitment’ Daily Maverick (22 January 2013) <http://www.dailymaverick.co.za/opinionista/2013-01-22-judicial-transformation-south-africas-appalling-non-commitment/#.V3-Vn1du5SU> accessed 12 November 2017; Andries Nel, ‘The Legal Practice Bill and the Transformation of the Legal Profession’ Department of Justice and Constitutional Development, Republic of South Africa (10 May 2013) <http://www.justice.gov.za/docs/articles/20130510-dm-tranformation.html> accessed 12 November 2017.
123 Nomthandazo Ntlama, ‘The Transformation of the South African Judiciary: A Measure to Weaken its Capacity?’ <http://www.nylslawreview.com/wp-content/uploads/sites/16/2014/10/Ntlama.pdf> 9 accessed 12 April 2017. Statistics for the demographic profile of the Constitutional Court and the Supreme Court of Appeal are available at 10–11. See further Oliver, ‘The Selection and Appointment of Judges’ (n 11).
124 Ibid. See also Nel (n 122).
125 Du Bois (n 106) 288.
126 Andrews (n 119) 569.
127 Malan (n 116) 1970.
128 Geoff Budlender, ‘Transforming the Judiciary: The Politics of the Judiciary in a Democratic South Africa’ (2005) 122 South African Law Journal 715, 717; Sandile Ngcobo, ‘Sustaining Public Confidence in the Judiciary: An Essential Condition for Realising the Judicial Role’ (2011) 128 South African Law Journal 5, 10–11.
129 Budlender, ‘Transforming the Judiciary: The Politics of the Judiciary in a Democratic South Africa’ (n 128) 717.
130 The report is available at <http://www.politicsweb.co.za/news-and-analysis/the-judiciary-do-white-males-not-need-apply> accessed 9 April 2017 and discussed in Malan (n 116) 1975.
131 Malan (n 116) 1976–77.
132 Ibid 1975.
133 Something the JSC itself acknowledges in the criteria for appointment published in 2010, see below.
134 See interview with Izak Smuts SC regarding his resignation from the JSC at the University of Cape Town Law Faculty, 20 April 2013 <https://contextsblog.wordpress.com/2013/04/20/interview-with-izak-smuts-sc-regarding-his-resignation-from-the-jsc/> accessed 12 November 2017.
135 Budlender, ‘Transforming the Judiciary: The Politics of the Judiciary in a Democratic South Africa’ (n 128) 716.
136 Ibid 720. See also See Pierre de Vos, ‘Time to Talk about the Appropriate Political Role of the JSC’ (Constitutionally Speaking, 18 April 2013) <http://constitutionallyspeaking.co.za/time-to-talk-about-the-appropriate-political-role-of-the-jsc/> accessed 12 November 2017; Olivier, ‘A Perspective on Gender Transformation of the South African Judiciary’ (n 121) 451.
137 Helen Suzman Foundation v Judicial Service Commission and Others [2014] ZAWCHC 136.
138 S Cowen, ‘Judicial Selection in South Africa’, unpublished report (2010) at 7–8, commissioned by the Democratic Governance and Rights Unit, copy on file with the author.
139 Ibid 5.
140 Ibid chs 3–6.
141 Ibid 40.
142 E Christiansen, ‘Transformative Constitutionalism in South Africa: Creative Uses of Constitutional Court Authority to Advance Substantive Justice’ (2010) 13 Journal of Gender, Race and Justice 575, 576. See also Karl Klare, ‘Legal Culture and Transformative Constitutionalism’ (1998) 14 South African Journal on Human Rights 146.
143 Malan (n 116) 1973.
144 Ngcobo (n 128) 14–15; Malan (n 116) 1973.
145 Judicial Service Commission v Cape Bar Council [2012] ZASCA 115.
146 Malan (n 116) 2013.
147 Judicial Service Commission (n 145) [2].
148 Ibid [38].
149 Ibid [39].
150 Ibid [51].
151 Cowen (n 138) 82.
152 Ibid 82–3.
153 The reports are available at <http://www.dgru.uct.ac.za/dgru/reports/researchreports> accessed 12 November 2017. The Unit’s methodology continues to evolve, partly in response to feedback from stakeholders such as the JSC itself. The April 2017 report does not contain all judgements handed down by the candidates. Rather, it consists of summaries of what DGRU believe to be the most significant decisions, arranged by theme e.g. civil and political rights. The Unit remains reluctant to provide its own commentary on the strengths and weaknesses of the judgements. However, the April 2017 report does contain academic criticism of various judicial decisions.
154 ‘Submission and Research Report on the Judicial Records of Nominees for Appointment to the Constitutional Court’, February 2013.
155 Cowen (n 138) 83–4. Cowen notes that the pool of information ought to be widened to include unreported judgements, heads of argument, newspaper articles, speeches and so on. Furthermore, exclusive reliance should not be placed on material provided by the candidate. Ideally, the information should be supplemented by evaluators conducting independent internet searches and through the participation of interest groups – see page 84 of the report.
156 Olivier, ‘The selection and appointment of judges’ (n 11) 148. See also Richard Calland and Chris Oxtoby, ‘Rational, consistent process for choosing judges needed’ Business Day (18 April 2013); Malan (n 116) 1974–75.
157 Malan (n 116) 1974–75.
158 Calland and Oxtoby, ‘Rational, consistent process for choosing judges needed’ (n 156).
159 As noted earlier in this article, the President appoints the Chief Justice after consultation with the JSC. As part of that process of consultation, the JSC interviews nominees for the CJ position – see L Siyo and JC Mubangizi, ‘The Independence of South African Judges: A Constitutional and Legislative Perspective’ (2015) 18 Potchefstroom Electronic Law Journal 817, 823.
160 See, for instance, the submissions of Section 27 and the Women’s Legal Centre available on the website of the Democratic Governance and Rights Unit – <http://www.dgru.uct.ac.za/dgru/reports/submissions> accessed 12 April 2017. See also Olivier, ‘The Selection and Appointment of Judges’ (n 11) 142.
161 Section 27 submission (n 160). See also ‘Zuma appoints controversial judge Mogoeng to top post’ BBC News (8 September 2011) <http://www.bbc.co.uk/news/world-africa-14839406> accessed 12 November 2017.
162 A transcript of the interview is available at <http://constitutionallyspeaking.co.za/transcript-of-jsc-interview-with-justice-mogoeng-2009/> accessed on 9 August 2017. See Stuart Graham, ‘Mogoeng Grilled during Interviews’ (IOL, 4 September 2011) <http://www.iol.co.za/news/politics/mogoeng-grilled-during-interviews-1130977> accessed on 9 August 2017. For a different view, see Press Statement from Section 27, Sonke Gender Justice Network, Lesbian and Gay Equality Project and the Treatment Action Campaign ‘JSC Interview Raises Concerns About Judicial Appointment Process’ (6 September 2011) < http://www.tac.org.za/community/node/3151> accessed 12 November 2017.
163 Chris Oxtoby and Richard Calland, ‘Crisis of Confidence at the Concourt’ The Argus (18 March 2012) <http://www.uct.ac.za/usr/dgru/downloads/concourt.pdf> accessed 12 November 2017. On the dearth of Constitutional Court candidates, see further DGRU Submission and Research Report on the Judicial Record of the Nominees for Appointment to the Supreme Court of Appeal and High Court, April 2016, 5.
164 Calland, The Zuma Years – South Africa’s Changing Face of Power (n 15). The post-2011 period has also witnessed enhanced civil society interest in judicial appointments. In 2014, for instance, a group of organizations formed a loose coalition, Judges Matter, which monitors judicial selection and appointment. Its website also makes available transcripts of judicial interviews and video clips from interviews – see <http://www.judgesmatter.co.za>.
165 Scott Roberts, ‘Chief Justice: I will protect gay rights despite being against gay marriage’ Pink News (4 June 2014) <http://www.pinknews.co.uk/2014/06/04/chief-justice-of-south-africa-i-will-protect-gay-rights> accessed 9 August 2017.
166 Calland, The Zuma Years – South Africa’s Changing Face of Power (n 15).
167 Ibid.
168 DGRU Submission and Research Report on the Judicial Record of the Nominees for Appointment to the Supreme Court of Appeal, Electoral Court, High Court and Labour Appeal Court, April 2014, 5.
169 DGRU Submission and Research Report on the Judicial Record of the Nominees for Appointment to the High Court and Labour Court, September 2015, 5. It should be noted that inconsistency was raised as an issue in DGRU’s October 2014 report. This is an indication that, despite improvements, consistency remains something of a challenge and is an issue for research and pressure groups to keep an eye on. The length of interviews is also a cause for concern. Increased rigour of the questioning has sometimes resulted in much lengthier interviews and less predictability about when they will begin and end – see the April 2015 report, 7; and the September 2015 report, 5–6.
170 Geoff Budlender, ‘20 Years of Democracy: The State of Human Rights in South Africa’ (2014) 25 Stellenbosch Law Review 439, 448.
171 Budlender, ‘Transforming the Judiciary: The Politics of the Judiciary in a Democratic South Africa’ (n 128) 448; Chris Oxtoby, ‘A Week in the Life of the JSC’ (The Con, 9 June 2014) <http://www.theconmag.co.za/2014/06/09/a-week-in-the-life-of-the-jsc/> accessed 12 November 2017. Interestingly, in discussion documents from March of this year, the African National Congress reportedly wants “judges with a progressive philosophy and who advance judicial activism to give effect to social transformation to be appointed to the Bench” and for JSC commissioners to review the selection criteria with this in mind, <http://www.judgesmatter.co.za/opinions/anc-to-examine-criteria-for-judges/> accessed 12 November 2017. Whether any changes flow from this and what such changes would mean in practice remains to be seen.
172 Oxtoby, ‘A Week in the Life of the JSC’ (n 171).
173 Ibid.
174 Ibid.
175 Siyo and Mubangizi (n 159) 827–28.
176 Minister of Health and Others v Treatment Action Campaign and Others (No 2) [2002] ZACC 15.
177 ‘What did Manto and Maduna Really Say?’ (IOL, 27 March 2002) <http://www.iol.co.za/news/south-africa/what-did-manto-and-maduna-really-say-84013> accessed 12 November 2017. See also Theunis Roux, The Politics of Principle (CUP 2013) 298.
178 Roux (n 177) 298.
179 Geoff Budlender, ‘People’s Power and the Courts: Bram Fischer Memorial Lecture 2011’ (2011) 27 South African Journal on Human Rights 582, 586.
180 Siyo and Mubangizi (n 159) 838.
181 Lindi Masinga, ‘Judiciary responds to criticism of courts’ (IOL, 8 July 2015) <http://www.iol.co.za/news/crime-courts/judiciary-responds-to-criticism-of-courts-1882462> accessed 12 November 2017. This and other challenges to judicial independence are discussed in more detail by Siyo and Mubangizi (n 159) 835–39. See also, Natasha Marrian, ‘Executive and judiciary discuss “criticism of judges”’ Business Day (27 August 2015); Morné Olivier, ‘Competing Notions of the Judiciary’s Place in the Post-Apartheid Constitutional Dispensation’ in Hugh Corder, Veronica Federico and Romano Orrù (eds), The Quest for Constitutionalism: South African Since 1994 (Routledge 2016) 69.
182 Mark S Kende, ‘Enforcing the South African Constitution: The Fight for Judicial Independence and Separation of Powers’ (2014) 23 Transnational Law and Contemporary Problems 35. By contrast, Issacharoff, writing about how courts should respond to threats to ‘democratic contestation’ from a dominant party, describes the South African Constitutional Court’s approach as being ‘non-confrontational’ and based on ‘partial reasoning’ (n 16) 590 and 605.
183 [2016] ZACC 11.
184 For a discussion of the background to the case and the judgement, see Robin Palmer, ‘South Africa: Constitutional Court takes stand against corruption and reaffirms principles of the rule of law in the landmark Nkandla case’ [2016] Public Law 519.
185 Stephen Ellmann, ‘The Struggle for the Rule of Law in South Africa’ (2015–16) 60 New York Law School Law Review 57, 102.
186 Jan van Zyl Smit, ‘“Opening up” Commonwealth Judicial Appointments to Diversity? The Growing Role of Commissions in Judicial Selection’ in Graham Gee and Erika Rackley (eds), Debating Judicial Appointments in an Age of Diversity (Taylor and Francis 2017) 60, 76.
187 Ibid.
188 Hoexter and Olivier, ‘The Judicial Service Commission’ (n 13) 156.