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Response to Klaaren 439
implementation’ that makes transparency ‘judicious’, the question may be
asked – to what end? If not for the dignity of a particular judge (since this
basis is disavowed), then for what? For the dignity of the bench, or of the
legal profession in general, or for something else?
Klaaren identifies two respects in which judicious transparency is
distinguishable from ‘other forms and rationales of transparency’. Firstly,
it may be distinguished from ‘presumptive or media transparency’ which
demands ‘a presumption of openness that is the opposite of considered or
nuanced’ – that is, he implies, virtually absolute transparency. But Klaaren
does not make clear what factors determine the consideration and nuance
that would make transparency ‘judicious’ as opposed to ‘presumptive’. It
is also not immediately apparent why – though it is clearly implied –
judicious transparency is the better form.
The second form of transparency which is distinguished is ‘public
transparency’, although the two are said to share ‘many of the goals
inherent in the support of constitutional democracy’. To illustrate the
concept of public transparency, Klaaren cites Albertyn making two
‘appeals’ in relation to the recent JSC nominations for vacancies on the
Constitutional Court. The first, that criteria for judicial selection be better
articulated, is clearly related to the issue of transparency – although again,
what distinguishes it as ‘public’ transparency is unclear. However, it is less
clear how the second appeal – relating to the type of questioning by JSC
commissioners – is related to transparency. It might be said that the issue
is not so much an openness problem – in that the hearings are open and
people are able to observe that there are problems with the questions being
asked – as a procedural issue. How does remedying the problems with
what questions candidates are asked link to issues of transparency?
Klaaren does remark – presumably in relation to the JSC’s hearings into
Hlophe rather than the judges’ interviews – that ‘the primary value of the
potential openness of the hearings would be their public educational
value’. If this is the only rationale of for ‘public transparency’, it seems a
rather limited – although not unimportant in itself – claim for
transparency. Moreover, the scope of the transparency it entails is not
clear.
Klaaren defines judicious transparency as ‘a form of openness
ultimately linked to the Constitution’s notion of open justice, as articulated
in the Independent Newspapers case’. Although Klaaren does not expressly
articulate it, this must mean something along the following lines: In
Independent Newspapers, 4 the Constitutional Court was faced by a claim that
the media and the general public had a constitutional right of access to
court proceedings. Writing for a majority of the Court, Moseneke DCJ
identified a ‘cluster’ or ‘umbrella’ of related rights, comprising the rights of
4 Independent Newspapers (Pty) Ltd v Minister for Intelligence Services [2008] ZACC 6.