Deputy Speaker, I would like to say to my hon chairman: Thank you for those kind words. Madam, may I also say to the hon Trevor Manuel: After twenty years, in justice we do still ask the question: Is it good? Is it fair? Is it just? If a justice committee did not do so, it would, of course, be a problem.
Well, I do take issue with my ANC colleagues today. The aim of the argument is progress, as my former President has argued, following the French philosopher Joseph Joubert, who said, "The aim of an argument or discussion should not be victory, but progress." It is in that spirit that I make some points, and I take issue on some matters.
It has taken 18 years for this Parliament to carry out its obligation under section 219(5) of the Constitution to produce this legislation to establish frameworks for determining salaries, allowances and so forth. It is therefore greatly to be welcomed that we are now doing our duty to put an end to the disparities and eccentricities that have characterised the salaries and conditions of service of the Chapter 9 Institutions.
The one difficulty that we in the DA have, and which is conceded by the ANC only in so far as it recognises the need for later debate, is that the line Ministries that act as conduits for the budget allocations of the various Chapter 9 Institutions are to be consulted by the Independent Commission for the Remuneration of Public Office Bearers alongside the Treasury.
The line Ministries should not be acting as conduits at all. The Chapter 9 Institutions are independent and subject only to the Constitution and the law, just like the courts. They are accountable to the National Assembly, and Ministries have no role to play in them. It was consequently the recommendation of the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions, supported by Treasury, in the hands of Minister Manuel at the time, that the location of the budget allocation within Ministries creates a false impression of accountability to government.
The previous National Assembly, near the end of its life, adopted the proposal of the Ad Hoc Committee on the Review of Chapter 9 and Associated Institutions of the creation of a unit in the Speaker's Office. It also supported - but did not yet adopt - the recommendation that the Chapter 9 institutions' budget should become part of Parliament's own Budget Vote. This Parliament should have adopted that recommendation and it would have followed that line Ministers should also not be consulted on the salaries of the commissions. They have no role to play.
Now, I want to go slightly more broadly but still within the context of the argument. I believe that there is a trend against the granting of institutional independence from the executive which is discernable right now as we approach the end of the life of this Parliament, and it worries me. It applies also to the courts. Let it be said clearly, however, that the work we have done in Justice during this term, until the end of last year, has been historic.
Nothing can ever match the glory days when we negotiated the two Constitutions, or the early years in the Justice and associated committees. Nothing can ever match those years. There were two reasons: No one ever compromised on the principles that we ourselves had built into the Constitutions, and the people involved were all personalities in their own right, as politicians should be. Nothing can match those years!
However, in the Justice committee in this term we began something historic. We began to create the institutionally independent judiciary, which judges have been proposing for some time, and which the Justice and Constitutional Development Minister and his former Deputy Minister facilitated. These developments would bring us in line with comparative jurisdictions, but now the Justice and Constitutional Development Ministry appears to be losing the political will to take the final steps. I hope that I am incorrect, but that is how it appears to me.
The first and second steps were the Constitution of South Africa's Seventeenth Amendment Act, which made the Chief Justice the head of the judiciary, and the Superior Courts Act which further elaborates the management of the judicial functions by the judges. The third and fourth steps are supposed to be the creation of a judicial council to make policy and an independent administrative agency to run the courts.
The Office of the Chief Justice was simply an interim step to get the show on the road, but now the hon Deputy Minister of Justice, John Jeffery, tells us in the Mail & Guardian that the government has accepted only that the judiciary should play "an active role" in court administration. He also writes that the judges are not elected, cannot be recalled and would therefore be unaccountable if they ran the courts. That is simply not so.
It was already understood between the Office of the Chief Justice and the Portfolio Committee on Justice and Constitutional Development that the Secretary-General of the Office of the Chief Justice would have come to us for the public money that was voted and spent. How is that a problem when that is how it already works for the Chapter 9 Institutions and when the judicial branch is the granddaddy of independent institutions? How is that a problem?
The Chief Justice himself specifically favours a model based on the Auditor- General which is, of course, a Chapter 9 Institution. Under this the judicial council will comprise only judges, with an advisory board from other disciplines for accountability. The Chief Justice has pointed out that there is no Cabinet member responsible for Parliament, and there should be none for a judge-led court administration under the institutionally independent judicial branch of the state.
Of course it is true, as the hon Jeffery argues, that the Constitution itself gives the Justice Minister a responsibility for the administration of justice, but the clear compromise is to make the Justice Minister a member of the judicial council, where some of the international comparative examples would also place him. A number of other jurisdictions already have independent agencies which run the courts. We have also been falling behind international trends in respect of our prosecuting authority and the SA Judicial Service Commission.
I took the thinking of the two gentlemen to whom we bade farewell today - former President Motlanthe and hon Minister Trevor Manuel - forward in two private member's Bills, on which I will address you on Thursday. The one pertained to the SA Judicial Service Commission - its composition and certain other aspects. That thinking I based directly on the NDP. The other private member's Bill pertained to the National Prosecuting Authority. It began first and foremost with an appointment mechanism that is different from what we have now. The very first person to propose a different mechanism was then President Motlanthe. I will address you on those on Thursday in a last blast.
I regret to say that the ANC could not be bothered to deliberate on those two private member's Bills. It is a matter of regret to me that the ANC appears to be hanging on to such executive power as is already enshrined, instead of modernising the legal sector.
We produced a political order which was widely admired during the transitional years, and which it was my privilege to be a participant from the start to the end! I think we are leaving the transitional times behind.
My plea is simple: let us not fall behind now. I say so against the background of a justice committee which up until the end of last year had, I repeat, done historic work! That also goes for the Ministry, both the hon Justice Minister Radebe, the former Deputy Minster Andries Nel and the present Deputy Minister John Jeffery. We have all worked in concert to do work that I considered to be historic and my plea is quite simple: Let us not fall behind now.
Thank you. [Applause.]