In what must surely be one of the greatest acts of political irony, the National Assembly this week sent a disgraced former judge, whom it impeached just six months ago, to serve on the body that appoints judges.
Parliament on Tuesday gave its blessings to John Hlophe to serve as the MK party’s candidate on the Judicial Service Commission (JSC) — a body which ruled him guilty of gross misconduct while serving as the judge president of the Western Cape.
To sum up then: The man the JSC found to have acted in the most extraordinarily improper way as a judge, will now get to sit as a commissioner on the JSC — which decides on the suitability of candidates for judicial office and which acts as a judicial watchdog.
Parliament scored this own goal with just the usual suspects — in the form of the DA, Freedom Front Plus and Build One SA — objecting.
It was the government of national unity’s first major failure.
Not surprisingly, parliament’s acquiescence in his appointment now faces a legal challenge
The GNU had brought with it the promise to act in ways that would strengthen the rule of law and our democracy. In this case, it did nothing of the sort.
The ANC, which in February voted for Hlophe’s impeachment, seemed to find nothing wrong with the MK party’s decision to put him forward as its representative on the JSC.
The party reportedly took the view that because there was nothing in law or in the rules of parliament prohibiting the appointment of an impeached judge to the JSC, it should not oppose his appointment.
The fact that it is a self-evidently irrational and inappropriate decision does not apparently count.
The EFF said the JSC would be lucky to get someone with Dr Hlophe’s legal qualifications to serve on it — apparently missing the point that it was not his legal knowledge that was in question.
It is his ethical judgment. Both the JSC and parliament had found he was not a fit and proper person to serve as a judge.
Not surprisingly, parliament’s acquiescence in his appointment now faces a legal challenge.
And it’s not as though it didn’t get a heads-up. Several powerful civil society organisations sent a letter to the speaker’s office voicing their concern about his nomination.
It was pointed out that those designated to serve on the JSC should have a demonstrated commitment to upholding constitutional democracy, the rule of law and the independence of the judiciary.
Hlophe’s highly improper attempt to influence judges of the Constitutional Court in a politically sensitive case relating to former president Jacob Zuma demonstrated the opposite.
It is never ideal to have the courts second-guessing our democratic parliament.
But there is a constitutional onus on parties to act rationally or at least with a modicum of common sense.
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