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Looking at the Hlophe affair, Canadians could be excused for patting themselves on the back. What on earth do we have to learn from South Africa when it comes to picking Supreme Court judges? Our process, starkly different from that country's, is simple, neat, clean, and quiet. The prime minister chooses whomever strikes his fancy. That's it. There may or may not be some tepid pro forma consultations conducted on the prime minister's behalf — an official in his office might chat politely with a handful of senior politicians, one or two establishment lawyers, the chief justice of Canada, people like that. On one occasion — when Justice Marshall Rothstein was appointed in 2006 — there was a perfunctory hearing by an ad hoc House of Commons committee, but this procedure was abandoned when Justice Thomas Cromwell was appointed in 2008. In this country, the whole thing is low- key, gentlemanly, very Canadian. How could anyone suggest that the noisy and chaotic South African way, which may involve shouting, is better? Cathleen Powell is a professor of law at the University of Cape Town, currently studying for a doctorate at the University of Toronto. She is a close observer of the South African judicial scene. "The Judicial Service Commission is sound in concept and structure," says Powell. "The nomination process and public interviews — that's the way these things should be done. If there's a problem with the JSC, it's not structure or process, it's politics. Sometimes politics overwhelms process. Remember, in South Africa, the African National Congress runs everything. It's a one-party state, and that can taint any institution, including the JSC." Powell pauses for a minute. "In Canada," she says, "with your genuine democracy, something like the Judicial Service Commission would work just fine. It would be a good idea." There are two reasons why Canada should adopt a JSC-type system for choosing SCC judges. The first is simple: it reflects and enhances genuine democracy. It's public and participatory, not a behind-closed-doors choice by the head of government for whatever private reasons appeal to him. The second is that, in Canada at least, the South African system, paradoxically, would prevent politics from swamping process. With the decline of Parliament, it is the Canadian judiciary that has become the much-needed brake on the executive branch. In this situation, should the executive, in private, choose whatever judges it finds suitable? (And, by the way, why should we be scared of a little public pushing and shoving when it comes to picking holders of high office?) There's something else to learn from South Africa when it comes to picking Supreme Court judges. Section 176 of its constitution provides that a judge of the Constitutional Court "holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first." In Canada, a federally appointed judge can stay until he or she reaches 75. Cromwell, the most recent appointment to the Supreme Court, was born in 1952; his 2008 appointment was effectively for 19 years. That's too long. It inhibits a dynamic process of renewal. It denies an opportunity to many who would be excellent judges. And it means we will have some judges who are really, really tired (a number of recent Supreme Court judges have quit long before age 75, having had enough). Inspiration sometimes comes from unlikely places. But maybe it's not that unlikely in this case. Canadian experts gave advice on the drafting of the South African Constitution. The South African Bill of Rights has echoes of the Canadian Charter of Rights and Freedoms. As part of the international give-and-take of good ideas, why not borrow the South African system of choosing judges? Dye & Durham is the Largest Supplier of Indexes J60211 DD Indexes Ad v2a.qxd 10/28/09 3:24 PM Page 1 Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. Visit him online at philipslayton.com your LAW OFFICE PRODUCTIVITY source Buy only the Letters or Numbers you Need! • Available in complete sets or packages of individual numbers or letters • Sets from 1-2000, letters A-Z, Buff or White • Custom numbering up to 99999 and double alpha digits available • Bulk order specific numbers or letters to reduce waste, Indexes up to 30% post consumer content For more information contact your D&D Sales Representative or call our Customer Care Line or visit us online dyedurhambasics.ca • 1-888-393-3874 www. C ANADIAN Law ye rmag.com NO VEMBER / DECEMBER 2009 17 Since 1998 FREE Samples Available