Tuesday, February 13, 2007

Judicial Education Bill is flawed

Few people with any knowledge of our legal system would argue that there is no need for the further education and training of judicial officers (both judges and magistrates) in South Africa.

In the past, legal training at our Universities was often vaguely aimed at “making students think like lawyers”. When one then asked a law lecturer to explain how exactly lawyers think differently from say, florists, sex-workers or politicians, they often mumbled about logic, reason and precedent.

Maybe things are changing, but I suspect most law students are not confronted with difficult and critical questions about the nature of our legal culture. Do we look into and analyse the (often) silent assumptions underlying our legal culture?

Do we look into the assumptions underlying the legal culture’s acceptance of what constitutes good and bad legal arguments? What role does the traditional common law rules play in the perpetuation of skewed power relations in our society? What is the role of the Bill of Rights in the development of the common law – should Roman Dutch Law be ditched in exchange for the values of the Constitution?

If we really believe that the Constitution requires us to engage with the transformation of the law and legal system, we must recognize that there is an urgent need for the further legal education and training of magistrates and judges.

It is therefore to be welcomed that, according to the Legalbriefs website, the Minister of Justice and Constitutional Development has recently introduced the South African Judicial Education Institute Bill to Parliament. There is an urgent need for education and training that range from the most basic skills training to the more high level training required to realize the vision enshrined in the Constitution.

However, the Bill as it stands might well be shot down by many judges who might claim that it has the potential to interfere with the independence and status of the higher courts.

The Bill proposes the creation of a single Judicial Education Institute, headed by a Director and staffed by academics who are not members of the Judiciary themselves. It is envisaged that the Institute would be governed by a Council headed by the Chief Justice but the majority of the members of this council will not be members of the judiciary.

In the past some judges raised questions about the wisdom of conducting the education and training for magistrates and judges at the same institution, given the difference in Constitutional role and status of the Higher Courts and the lower courts. Personally I do not see this as a major stumbling block - its more a matter of judges ego's being hurt.

Far more problematic is the fact that the Bill proposes that the Institute be governed by an unwieldy Council of 19 members of which only 7 need to be judges or retired judges. As far as I can tell (the Bill is so badly written that it is not even clear who will appoint some of the Councillors) the Council will be in charge of the curriculum to be taught at the Institute. This means non-judges will have a decisive say in this curriculum. Many of these Councillors will also represent constituencies that are not known for their progressive views on our legal culture and have not shown a deep appreciation for the need for deep transformation.

This could be seen as a serious threat to the independence of the judiciary because in the wrong hands judicial education could become judicial brainwashing.There is a delicate line to be walked here, of course. One does not merely want old-style judges using the Institute to perpetuate the formalistic view of the law that hinders transformation of the legal system and the legal rules. At the same time one does not want such an Institute to tell judges what political line they need to take on the legal issues of the day.

The proposals as it stands at the very least runs the risk of establishing an Institute that will perpetuate all the bad habits of our legal culture and will entrench a new kind of patriarchal view of the law. At worst it will fundamentally interfere with the independence of the Judges of the High Court.

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