LAW SOCIETY DISCOURSE Cj, JSC usurping the King’s power
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1 terms of the Constitution which is the supreme law of the country the power to appoint Judges vests in the King.
6ection ( of the Constitution provides that the Chief Justice (CJ and the other Justices (Judges of the 6uperior Courts shall be appointed by the King on the advice of the Judicial 6ervice Commission (J6C .
5eaders may recall that in the dis course three weeNs ago the law so ciety decried the prevalent acting appointments which have become the rule rather than the e[ception they should be.
The issue of acting appointments was addressed generally in the discourse of three weeNs ago.
,n this weeN¶s discourse the /aw 6ociety will show that the CJ and his J6C are actually depriving the King of his power to maNe appointments of Judges. ,n other words the CJ and his J6C are usurping the power of the King to maNe Mudicial appointments.
This is done through the use of sec tion ( of the Constitution in terms of which the CJ is permitted after consultation with the J6C to maNe an acting appointment for a period of one month. 5eaders must recall that the law society emphasised that this period of acting appointment is not renewable.
The vast maMority of the acting ap pointments of Judges published in the ga]ette monthly are for a period of one month which is a clear sign that they are made in terms of section ( of the Constitution which gives the CJ power to maNe acting appointments.
5eaders may also recall that in the discourse about acting appointments of Judges the law society pointed out that even the primary power to maNe acting appointments vests in the King in terms of 6ection ( of the Constitution which provides as follows µ:here it appears to the CJ that for a short dura tion the prescribed complement of the 6upreme Court or +igh Court as the case may is for any reason unliNely to be realised or where the e[igencies of the situation so require the CJ shall advise the King to appoint a qualified person to act in that Court for that duration ´.
,n terms of 6ection ( this short duration referred to in 6ection ( should not e[ceed a single renewable period of three months.
,n case the acting term of appoint ment of a Judge e[pires prematurely section ( maNes provision for an e[tension with the consent of the King acting on the advice of the CJ or the CJ after consultation with the Judicial 6ervice Commission for continuance of the acting appointment for such a period not e[ceeding three months as may be necessary to enable that person (Mudge to deliver Mudgment or to do any other thing in relation to proceed ings that were commenced before that person previously to the e[piry of the acting appointment.
5eaders must asN themselves why the vast maMority acting appointments are for a period of one month only as opposed to the period of three months in terms of 6ection ( of the Con stitution. 6urely this is because the CJ maNes these monthly appointments while the longer acting appointments of three months are made by the King.
$t the rate that the monthly acting appointments of Judges are made it is clear that the CJ is usurping the power of the King to appoint Mudges.
)irst why is the CJ preoccupied with dispensing Mustice through acting Mudg es" 6econdly why does the CJ prefer that these acting appointments be made by him as opposed to the King who is entitled to maNe acting appointments too in terms of 6ection ( of the Constitution"
The fact that the CJ regurgitates the same people in the acting appointments he maNes it maNes sense that the longer appointments of three ( months vest ed in the King should be used. ,s the CJ trying to entrench himself" The reader must be the Judge.
This bra]en violation of the Consti tution is simply not acceptable. 3ower must be e[ercised by the appropriate Constitutional body or person in whom the power is vested.
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To those who are tempted to asN why the CJ is the focal point of the criticism by the /aw 6ociety in the face of the active participation of the Judicial 6ervice Commission in controversial acting appointments the answer is that the CJ himself chairs the Judicial 6ervice Commission.
)urthermore the CJ has already re vealed his views about consultation. ,n the recently published J6C statement he said that µit is important to under stand that legally consultation is an administrative concept and does not mean approval.¶
There is no doubt that this is the ap proach of the CJ in his duty to consult with the J6C. ,n the discourse of two weeNs ago the /aw 6ociety seriously questioned the independence of the J6C which wasted public resources by issuing the page full statement in both daily newspapers primarily on a matter which did not concern it.
5eaders are reminded of the law society complaint on the lacN of con sultation with it by the CJ on the es tablishment of the Commercial Court in line with the Constitution. The J6C came out to defend the CJ in a public statement yet it was clear that it had no business doing so.
This was obviously without having regard to the letters written by the law society to and acNnowledged as received by the CJ which as a matter of obMective evidence contradicted the J6C denial of lacN of consultation. :ho can blame the /aw 6ociety therefore when it concludes that the J6C is the alter ego of the CJ an instrument he uses at whim.
,n the third discourse of the law soci ety which was one of the introductory articles seeNing to familiarise readers with important players or staNeholders in the administration of Mustice last year the law society mentioned that the J6C is established under 6ection of the Constitution and that additionally to the CJ who serves as its chairperson members comprise the chairman of the Civil 6ervice Commission two ( legal practitioners of not less than seven ( years of law practice and in good professional standing who are appointed by the King who also has the right and privilege of appointing two ( other persons.
The law society further stated that the J6C is an independent body which in terms of 6ection ( of the Constitu tion shall not be subMect to the direction or control of any person or authority in the e[ercise of its functions. The conclusion of the law society in its third discourse was that if the J6C does not play its part the rights of the public to the protection of law is in Meopardy and the progressive development of the people of (swatini in conditions of peace order and good governance will remain a pipe dream.
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Judicial independence pertains to the ability of Judges to perform their func tions without interference of any Nind and from whatever source including the CJ as +ead of the Judiciary himself.
The law society reiterates that Mus tice is the loser when Judges have no security of tenure in office (permanent appointments where they may not be removed otherwise than in terms of the strict provisions of the Constitution . :hen Judges have security of tenure they are less vulnerable to pressure from those who can influence them.
$n independent impartial honest and competent Mudiciary is the cor nerstone of the Mustice system of any country. 6uch a Mudiciary fosters the confidence of the public in the admin istration of Mustice.
$s the law society has publicly stat ed the legal profession and indeed the public has lost confidence in the administration of Mustice.
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The law society cannot help but remember an article in the 1ation 0ag a]ine in )ebruary titled as above where the assistant editor e[pressed the following sentiments
The CJ %heNi 0aphalala remains unmoved by a growing list of accu sations against him for professional misconduct and unethical behaviour.
$s the head of the Mudiciary it appears he would rather be the ultimate Mudge of all litigation before the country¶s court both criminal and civil cases. *roomed by the disgraced Justice 0ichael 5a modibedi Justice 0aphalala has been in office seven years now overseeing the ultimate collapse of the country¶s Mudicial system.
,ncidentally the 1ation 0aga]ine comment was provoNed by allegations made by Judge 6ipho 1Nosi who ac cused the CJ of among other transgres sions interfering in Court proceedings.
$gainst this bacNground the law society cannot be faulted for its res olution to file a complaint against the CJ for Constitutional violations abuse of office and interference with the administration of Mustice among other serious offences.
The CJ has flatly refused to engage with the law society on critical issues of the proper administration of Mustice.
:hen he is called upon to account for his actions by other arms of the government the CJ is quicN to flash the independence of the Judiciary card.
The law society complaint which will be prosecuted in terms of the Constitu tion cuts across these unfortunate acts of defiance and the CJ has nowhere to hide.
The law society is convinced about the validity of its complaints about the CJ and that these will provide an acid test of whether the provisions in the Constitution e[ist only in paper or not.