The prayer of LSB in the suspended judges application
Mpho Mokwape | Friday April 8, 2016 16:01
In their filing notice dated February 25, 2016, if admitted, the LSB intends to make substantive submissions in respect of the suspended judges’ case that might be crucial in saving the judicial system and its integrity.
A three-man High Court bench will on April 28 hear the LSB application for leave to be joined to the proceedings.
First in their submissions will be the validity of the suspensions. The LSB maintains that the executive has a duty to refrain from any acts or omissions that needlessly undermine public confidence in the judiciary.
The main argument is that a suspension of a judge, no matter how temporary, weakens the confidence of the public in the suspended judge and the judiciary.
“A judge’s ability to effectively discharge his duties is dependent on the confidence that the public has in him/her. A lack of public confidence in a judge greatly erodes his ability to hold judicial office and to dispense justice. It is of the respectful review that the suspension of a judge, unlike that of a public officer employed under the Public Service Act, attracts audi rule and should not be lightly undertaken,” reads the papers.
The LSB explained that to the extent that the suspensions of the judges were in breach of that rule and were in response to a petition presented to the Judicial Service Commission (JSC), they will submit that they are invalid and are a violation of the right of the judges to petition the employing authority, the JSC.
They have maintained that the right to petition has historical significance and has in the international law attained the status recognition and has become a compelling law.
The LSB argues that it is constitutionally enshrined in Section 11 of the Constitution under the rubric of freedom of expression and that the judges must be permitted to petition the JSC freely without any reprisals or repercussions.
“Their suspension greatly undermined and violated their right to petition and therefore the suspension is invalid by reason that triggered the judges’ suspension. Twelve judges signed the petition yet only four have been suspended.
Further on the validity, LSB said the suspension of some judges and not others greatly undermined the independence of the judiciary and that the eight who were not suspended may have become beholden to the executive for ‘favourable’ treatment.
On the decision to refer housing allowance issue to the police, the LSB argues that Chief Justice (CJ) Maruping Dibotelo ought to have recused himself from the decision making process that resulted in the issue being referred to the police. “He clearly had interest in the matter as he had already expressed his views on it and he had indicated that he would use the issue to end judicial careers.” They will argue that there was conflict of interest as the CJ used his position as chairperson of the JSC to influence the referral by the JSC of a criminal complaint to the police.
The LSB reckons that the establishment of the Tribunal to enquire into the fitness of the judges was unconstitutional for several reasons, one being that it was only established in respect of four judges out of the 12 who signed the petition alleging that the executive favours some judges over the others.
The papers further read: “the allegations to suspend the judges are not serious enough to warrant removal from office particularly given that the CJ publicly insinuated that his colleagues were corrupt and prone to accepting bribes without tendering any evidence to his insinuations and no action was taken against him despite his actions greatly eroding public confidence in the judiciary. Double standards being applied in the discipline of the judges undermines the judicial independence and action not taken against them may become indebted to the executive.”
The LSB has also maintained that in relation to the reviewability of the President’s decisions that are being challenged, it was absurd in a constitutional democracy to argue that the invocation of constitutional powers by the President was beyond the court’s scrutiny.
The LSB said the rule of law requires that only the constitution was supreme and that the courts as the final arbiters of what the law was have an obligation to scrutinise executive action for compliance with law.
Lastly the LSB will touch base on the termination of vehicle benefits with the argument that the reduction of the judge’s benefits whilst he holds office was a grave violation of the constitution.
“A reduction not only contravenes the constitution but is contrary to international norms and practice. The decision to revoke the vehicle benefit is unlawful. The issue of reduction of benefits of judges whilst they hold office is of particular interest to us as almost all judges are appointed from the membership of LSB,” read the papers.
The LSB in their pursuit to the joinder says it wants to draw the court’s attention to matters of law and fact, which the court may otherwise not have drawn to attention.
In short they intend to bring international law dimensions to the arguments in the submissions above by relying on the country’s treaty obligations and customary international law as a source of constitutional interpretation. Furthermore, LSB had undertaken a comparative analysis of how the constitutional imperative of judicial independence has been interpreted in other jurisdictions and that such analysis will be of great value to the court in its deliberations.