SOUTHERN
AFRICAN CATHOLIC BISHOPS’ CONFERENCE
PARLIAMENTARY
LIAISON OFFICE
Submission to the Portfolio
Committee for Justice and Constitutional Development
on the
Judicial Education Institute Bill
(B4 -2007)
1. Introduction
1.1
The Southern African
1.2
The transformation of our society has been the subject of
much debate. There have been many positive
changes since 1994, and yet there remain areas of concern when it comes to the
transformation of the judiciary.
1.3
It is not the intention of this submission to go into the
technicalities of what steps are necessary to achieve transformation. Rather, we will seek to affirm some of the
principles contained in the Bill as well as to highlight certain aspects that
we would ask the Portfolio Committee to consider when deliberating on the legislation.
2. Background
2.1
Transformation in the judiciary is an issue that has
occupied some attention in the public domain[1]. Transformation is a controversial subject at
the best of times and made more so in the context of the judiciary. While recognising the need to redress the
imbalances of the past, it is at the same time necessary to balance this with judicial
independence.
2.2
Ongoing judicial education is an important way of not only
transforming the judiciary as a state institution, but it is also a means of
keeping the judiciary in touch with the community that it serves. Just what form this education will take is of
the utmost importance because while educating the judiciary, the institution must
at the same time be protected from government interference and populist
sentiment.
3. Concerns
There
are some specific concerns about the Bill that we have and it is to these that
we now turn.
Clause 7 (2) ‘any nominee …’
The
Bill refers to ‘any nominee’. We would
propose that it needs to be specified that the person who is nominated should be
suitably qualified person from the department who has the authority to make
decisions. It is important that the
nominee is able to participate in and take decisions on behalf of the member of
the council.
Clause 9 (2): Executive Committee
The
Bill mentions an ‘executive committee’ but it does not elaborate on what the
purpose is. The Bill should elucidate
what its powers and duties are.
Clause 12: Finances and
accountability
As
mentioned above, there is a need to ensure that legislation takes into account
the principle of the separation of powers.
We would ask that the members of the Committee look at the proposals
contained in the Bill and make certain that the measures in the Bill will be sufficient
to provide the Institute with sufficient financial independence from the
Minister and the Department.
Clause 16 (2): ‘Members may be
reimbursed for their expenses incurred during their service as members of the
Council’
While
we appreciate that the need to reimburse members for the expenses that they
incur, it is important that the wording is made more specific to avoid possible
abuses by inserting the word ‘reasonable’ so that it reads:
‘Members
may be reimbursed for their reasonable expenses incurred during their service
as members of the Council’.
Typographic errors
There
are two typographic errors. In the
Definitions clause, (ix) ‘this Act’ should read ‘section 15’ and not section
14.
In
Clause 16(1), the reference should be to section 7 (1) (n); and not (2) as is currently the case.
4.
Conclusion
While
we are not unique in trying to maintain the separation of powers between the
legislature and the judiciary, the situation is complicated by our history and the
need to transform our society. We thus
welcome this legislation as an attempt to rectify the inequalities created by
Apartheid while affirming the need to maintain the separation of powers.
For further
information, please contact
Ms Felicity
Researcher