WHEN a jurist as internationally revered as our former Chief Justice, Arthur Chaskalson, calls a spade by its proper name, it’s a good idea for the public, its political leaders – and the legal community – to pay attention.
In an important new analysis he has poked holes in one of the government’s controversial schemes which plans a complete reshaping of the legal profession.
Some of the key provisions, Chaskalson says, infringe the independence of the profession.
This would affect the public as well as the judiciary which depends on the profession in order to carry out its own duty properly.
Judges need independent lawyers so that disputes are properly aired. The public on the other hand needs to be certain the judiciary and the legal profession are independent, and that lawyers aren’t put in the position of refusing to take clients because of fear that, in so doing, they might face government hostility.
Chaskalson’s warning finds the legal profession divided over the government’s draft Bill, with some elements having decided to accept the inevitable while others are continuing to voice objections. We urge that this devastating new critique should be widely studied by leaders of the profession, to help focus their minds, alerting them to the dangers hiding in the proposed new scheme.
There is never a good time for threats to the independence of lawyers and judges but this is a particularly difficult period as government dissatisfaction with judicial review of its decisions becomes increasingly vocal.
Chaskalson’s warnings were however aimed more widely than the draft bill. He also challenged lawyers to ensure that, as a profession, they acted in the public interest. This means acting honourably towards the court, acting without fear or favour in relation to clients and generally embodying high professional standards.
More than this, lawyers needed to help protect the rights of everyone, not only the elite, with rules focused on ensuring the interests of the public rather than self-interest.
For the profession as much as for the government, Chaskalson’s words are a timely reminder of what a constitutional democracy requires.
It would be a mistake to ignore his warnings.