200909. Kliptown Hall, Walter Sisulu Square in Soweto where the interview took place for the Judicial Service Commission JSC interview for the Constitutional Court Judges post held in Kliptown Hall, Walter Sisulu Square, Soweto. 980 Picture: Dumisani SibekoSoweto. Picture: Dumisani Sibeko

It is time we assessed the performance of the Judicial Service Commission. The reasons we have not done so as yet are twofold: law is intimidatingly technical to us non-experts and, related, civil society spends little time trying to hold the judiciary accountable.

One perverse consequence is that the JSC can get away with doing a shoddy job in the full glare of an unsuspecting media, itself filled with not more than one or two reporters who have law degrees.

In this column I want to raise a pointed question, Is the JSC fit for its purpose?

A crucial debate currently raging within the legal community sets the stage for us. There is disagreement about how judicial transformation and merit in the appointment of judicial officers should be squared by the JSC.

Some fear that the JSC is simply hell-bent on excluding white men from the bench and determined to appoint black men at all costs. Women, black and white, they say, continue to be the demographic losers in this bean-counting game. They conclude that the administration of justice, and therefore the country as a whole, suffers, and a politically minded JSC can feel smugly self-satisfied.

Others, more intuitively mindful of the necessity of transforming the look of the judiciary, argue that demographic shifts are a no-brainer. They accept that the JSC must aim at transformation in this very blunt way, but bemoan the absence of a more careful examination of the judicial records and skill of the candidates before the JSC.

And so the debate rages, and the public is left watching, confused and uninvited, and yet we are the ones ultimately who have to access this justice system being constructed so haphazardly for us.

But here is the crux of the issue. What kind of leadership is the JSC itself demonstrating here? This transformation vs merit debate is now tiring. It flares up every time positions on the bench become available. The candidates’ names change (but for the recurring name of Jeremy Gauntlett, of course), but the argumentation tropes are predictable, and remain the same.

What indicts the JSC here is that the body now consistently and brazenly shows little intellectual and moral leadership on the substantive issues that divide the legal fraternity. That is why tired, truncated arguments resurface.

There is also a lack of perceptiveness about the importance of carefully enabling wider society to participate in a socio-legal debate about judicial transformation.

Instead, there is backroom politicking, factionalism, leaks, gossip-mongering and other familiar party-political behaviour in a body entrusted with a gigantic nonpartisan goal of appointing fit persons to leadership positions within the judiciary.

Two different examples will suffice to illustrate how the JSC could have done better. First, the JSC has a very bizarre habit of often not asking candidates any jurisprudential questions, even when those candidates are applying for a position on the constitutional court.

Several years ago, for example, I was watching the JSC proceedings in Soweto and was astonished that, of more than 10 candidates, only Judge Dennis Davis was closely engaged on hermeneutical matters in relation to the tough business of value-laden interpretations of constitutional rights.

Others were probed, as if in a political witchhunt, about such irrelevant issues as whether they had attended a certain legal conference the interviewer felt precious about.

Inconsistency in the way a committee interviews candidates demonstrates a committee’s incompetence. I sit on a prestigious scholarship’s selection committee. We have an independent observer who silently watches us and critiques us every year, in part on the basis of whether we are consistent in our treatment of the students before us. We take the feedback very seriously.

The JSC is clearly consistently inconsistent in its treatment of candidates.

Second, the JSC could also be more authoritative thought leaders. It really does not take a rocket scientist to make the case for why merit is not only a contested, value-laden concept itself, but is at any rate not logically or practically incompatible with demographically transforming the judiciary. Can someone on the JSC show some intellectual prowess, set aside the small-town politicking and get stuck into the meat of these issues for the sake of the country?

Perceived justice is a prerequisite for a legal system to be wholly legitimate. But perceived justice requires judicial officers who citizens can trust.

Such trust is fostered only when justice is dispensed by people who broadly look like the people who the justice system is regulating.

Merit is not threatened here. If anything, the legal system’s moral authority is threatened by an untransformed bench.

But no one on the JSC cares for a nuanced engagement of the issues and the myriad further issues that flow from this starting premise. They could not be bothered.

Are they fit for purpose, folks? I wonder.

* Eusebius McKaiser is author of the bestselling book A Bantu In My Bathroom, a collection of essays on race, sexuality and other uncomfortable South African topics.

The Star