After years of negotiations, a Legal Practice Bill has been submitted to Parliament and is before the Justice and Constitutional Development portfolio committee, which has invited comment on its provisions.
In its present form the bill will have a profound effect on the structure and functioning of the attorneys’ and advocates’ professions.
That is what is intended, for as the preamble to the bill records, one of its purposes is to provide a legislative framework for the transformation and restructuring of the legal profession into a unified profession which is representative of the Republic’s demographics.
Like the curate’s egg, though it has some redeeming features, it also contains provisions that seem to me to pose a potential threat to the independence of the legal profession.
Our constitution entrenches democracy, the rule of law, and internationally recognised human rights as foundational values of a commitment made in the preamble to “lay the foundation of a democratic and open society”.
The importance of this commitment was affirmed by President Jacob Zuma in his address last month to the high level meeting of the general assembly of the UN on the rule of law at the national and international levels. He called for a global commitment to the promotion of the rule of law and the realisation of human rights
Parliament and the executive derive their power from the constitution. In giving power to them, the people of our country said in the constitution that the bill of rights is the cornerstone of our democracy, that the state must respect, and fulfil the rights in the bill of rights, and that all power must be exercised in accordance with the provisions of the constitution.
They said also that it was the duty of the judiciary to uphold and enforce the constitution.
Leaving aside for the moment the question of the jurisdiction of particular courts, judicial review of legislation and executive action is not only sanctioned by the constitution; courts are told that they must declare legislation or conduct that is inconsistent with the constitution to be invalid. This obligation of courts is in stark contrast to the role of the courts when legislative supremacy prevailed. This can best be described by referring to a passage from a 1934 judgment of the Appellate Division, then our highest court, where the chief justice of that time said: “Parliament may make any encroachment it chooses upon the life, liberty, or property of any individual subject to its sway… and it is the function of the courts of law to enforce its will.”
This was later done as a matter of course under apartheid. Racially discriminatory laws were enacted by the white parliament to further the social, economic and political interest of the white community A vast network of draconian security laws, condemned internationally as gross violations of human rights, was enacted in an effort to control dissent. Legislation could not be invalidated and where it was interpreted in a manner which did not meet the satisfaction of the government, the “loophole” could be closed by legislation. Law enforcement provided the means by which apartheid was kept in place and dissent was curtailed.
This has changed. Now, the primary role of the judiciary as guardian of the constitution, is to ensure that everybody, including the other arms of government, act lawfully. Its task is to judge the legality of conduct, including the making of laws, and to provide appropriate relief in cases where breaches of the law have been established. This is the extent and the limit of its powers which are also derived from the constitution.
The judiciary cannot be expected to discharge its duty to judge the legality of laws and conduct of other arms of government, if it is subject to control, direct or indirect, by the legislature, the executive, or other powerful institutions. It is essential and indispensable for the discharge of this duty, and the exercise of the powers vested in it, that the judiciary should be, and should be seen to be, independent.
This is recognised in the constitution, which provides that courts are independent, subject only to the law and the constitution, which they must apply impartially without fear, favour or prejudice; and that no person or organ of state may interfere with the functioning of the courts.
The oath of office of judges requires them to swear or affirm that they will uphold and protect the constitution and the human rights entrenched in it, and will administer justice to all persons alike without fear, favour or prejudice, in accordance with the constitution and the law.
The bill empowers the minister to dissolve the council, and appoint an interim council in its place, to exercise control over important aspects of legal education and continuing education for legal professionals, to require legal professionals to render community service, and to prescribe what that should be, and to control the fees that can be charged for legal services.
It also makes provision for the establishment of the office of an ombud, which can conduct investigations into the legal profession and report to the minister thereon, and have the last word on disputes between members of the legal profession and the public on complaints over fees and other matters, and to review decisions of the board of the Fidelity Fund relating to the theft of money. Judicial independence is a requirement demanded by the constitution, in the public interest, for without that protection judges may not be, or be seen by the public to be, able to perform their duties without fear or favour.
This is necessary in the best of times, and crucial at times of stress.
Professor Dieter Grim, formerly a judge of the Federal Constitutional Court in Germany, describes judicial independence as the constitutional safeguard against the threat arising from politicians to the judges’ proper exercise of their functions.
Politicians tend to interpret the constitution in the light of their political interests and intentions.
Even if they originally agreed to judicial review they soon find that its exercise by a court is burdensome. They have a general interest in the court not being adverse to their objectives and plans and a specific interest in the outcome of particular litigation on which the implementation of a particular policy may depend.
Although not specifically mentioned in the constitution, the judiciary depends on an independent legal profession to enable it to perform its constitutional duty.
This is part of the rule of law which is entrenched in our constitution.
Constitutions are written for the future. One of the lessons of history is that rights are vulnerable, and when governments come under stress, there is a temptation for them to brush rights aside, in order to secure their goals and entrench their power. That is why democratic legal orders have checks and balances to guard against this. We cannot foresee the future.
It is important that we should protect the checks and balances, so that they are there should they be needed to protect our democracy. An independent judiciary and an independent legal profession are vital parts of these checks and balances.
On other occasions I have warned against the erosion of rights and checks and balances. The first steps to that end, even if they may seem at the time not to pose immediate threats, are particularly dangerous, for if allowed to pass without objection, they open the way for a political culture in which this is treated as acceptable.
There are signs that this is what is happening. The proposal initially made, but since revised, for a review of the powers of the Constitutional Court, the proposal once advanced, but subsequently put on hold, that there be a media tribunal to exercise some form of control over the media, the recent opposition by the Minister of State Security to proposed changes to the Protection of Information Bill presently before Parliament, show that this possibility cannot be excluded.
The legal profession has a duty to itself and citizens to do all that it can to protect its independence.
That involves ensuring that its rules and practices are in the public interest and facilitate access to courts, in particular by those whose need is the greatest, by promoting the culture of independence and professionalism in practitioners, by explaining to the general public the role of an independent legal profession in protecting democracy, and by raising its voice against measures calculated to erode that independence. The Legal Practice Bill in its present form is such a measure.
- Arthur Chaskalson is the former chief justice. This is an edited version of the speech he delivered at the meeting of the Cape Law Society in Kimberley on Friday