Category: News Feeds

Just
9%
of
the
78
workplace
dispute
resolution
matters
initiated
by
federal
court
employees
over
the
two-year
period
between
2021
and
2023
were
initiated
by

term
judicial
law
clerks,
according
to
the
Administrative
Office
of
the
U.S.
Courts’
(AO)

2023
Workplace
Report,
released
a
few
weeks
ago.
To
put
this
in
perspective,
that’s
around
seven
complaints
over
a

two-year
period,
or
fewer
than
five
misconduct
complaints
per
year.

This
negligible
number
of
workplace
misconduct
complaints
suggests

limited
use
of
the
federal
judiciary’s

employee
dispute
resolution
(EDR)
process
and
little
progress
toward
fostering
a
culture
of
reporting,
despite

sustained
criticism
of
the
federal
courts
and

several
recent
high-profile

sexual
harassment
scandals.

Yet
the
AO
wants
you
to
believe
that
all
is
well,
since
admitting
the
scope
and
severity
of
the
problem
might
necessitate
actually
implementing
meaningful
solutions.
According
to
AO
Director
Judge
Robert
Conrad,
“steady
progress”
has
been
made,
“multiple
robust
reporting
channels”
exist
for
mistreated
clerks,
and
the
judiciary
“does
not
have
a
judicial
problem”
because
there
have
been
few
complaints.
And,
according
to
Conrad,
law
clerks
are
apparently
at

no
higher
risk
than
employees
in
any
other
workplace
of
being
subjected
to
discrimination
or
harassment.

In
fact,
the
AO
does
not
know
—
or
does
not
care
to
know
—
that
abusive
conduct
is
pervasive
and
unaddressed
in
the
federal
courts.
What
anyone
with
expertise
in
sexual
harassment,
employment
law,
or
workplace
misconduct
knows
(and
sadly,
many
in
the
AO,
including

those
tasked
with
handling
law
clerk
issues,
do
not
have
this
expertise),
is
that
a
low
number
of
misconduct
complaints
does

not
signify
a
safe
workplace.
Rather,
it
suggests
ineffective
reporting
mechanisms
and
that
employees
do
not
feel
safe
reporting
misconduct
internally.

The
AO
seems
not
to
understand
that
there
is

no
greater
power
disparity
in
the
legal
profession
than
between
a
fresh-out-of-law-school
clerk
and
a
life-tenured
federal
judge,
necessitating

at
least

the
same
workplace
anti-discrimination
protections
for
judicial
law
clerks,
that
the
rest
of
us
enjoy.
Considering
the
enormous
power
disparity
between
subordinate
and
principal,
lack
of
anti-discrimination
protections
for
employees,
and
dearth
of
effective
reporting
channels
or
law
clerk
points
of
contact
for
assistance,
judicial
chambers
are
workplaces

particularly
conducive
to
abusive
conduct.

It
is
quite
simple:
law
clerks
do
not
and
will
not
report
misconduct
within
the
federal
judiciary
as
long
as
they
are
not
legally
protected
against
retaliation
under

Title
VII
of
the
Civil
Rights
Act
of
1964.
Yet
the
judiciary
still
opposes
extending
Title
VII
protections
to
its
more
than
30,000
employees.

It
is
disheartening
but
not
surprising,
that
just
days
after
an

entrenched
federal
judge
asserted,
categorically,
that
judges

should
not
be
criticized,
the
AO
would

characterize
advocates
as
alarmists
for
pointing
out
systemic
failures.
This
report,
and
the
regressive
statements
made
by
the
AO
about
it,
should
give
law
clerks,
prospective
clerks,
attorneys,
and
the
public
absolutely

zero
confidence
that
the
federal
judiciary
can
effectively
and
impartially
handle
sexual
harassment
disputes
internally.
Disturbingly,
this
workplace
that
spends
so
much
time
touting
its
law
clerk
program
and
recruiting
judicial
clerks,
apparently
cares
little
about
clerks’
well-being.

As
someone
who

regularly
counsels
law
clerks
on
their
options
to
address
misconduct,
most
mistreated
clerks
I
speak
with
have
not
and
would
not
report
misconduct
within
existing
judiciary
channels,
because
they
do
not
believe
it
will
be
taken
seriously
and
investigated
vigorously.
And
with

limited
remedies
available
to
clerks,

no
legal
protection
against
retaliation,
and,
sadly,
often
no
legal
counsel
to
assist
them,
it
is
difficult
to
convince
clerks
to
stick
their
necks
out
and
blow
the
whistle
on
misconduct.
Law
clerks
face

enormous
headwinds
in
reporting
misconduct:
the
federal
judiciary
does
not
make
the
process
any
easier.

The
AO’s
2023
report
says
little,
obfuscates
often,
and
leaves
experts
and
advocates
with
more
questions
than
answers.

The
report
focuses
on
the

EDR
Plan,
the
judiciary’s

toothless
and
insufficient
“alternative”
to
extending
Title
VII
and
other
anti-discrimination
protections
to
employees.
Of
course,
there
is
no
substitute
for
extending
legal
protections
to
employees,
an
argument
federal
judges
should
understand,
considering
that
they
preside
over
Title
VII
cases
themselves.

What
Is
EDR,
And
What’s
Wrong
With
It?

EDR
is
the
internal
workplace
dispute
resolution
process
whereby
a
mistreated
clerk
can
file
a
complaint
against
the
judge
they
work
for,
alleging
discrimination,
harassment,
abusive
conduct
(bullying),
or
retaliation.
Yet
it’s
a
byzantine
process
that
differs
by
circuit,
and
far
too
little
is
delineated
in
writing.

And,
it
is
rife
with
conflicts
of
interest.
Too
much
is
at
the
discretion
of
individual
presiding
judicial
officers
(PJOs)
—
judges
in
the
courthouse
where
the
complainant
law
clerk
and
misbehaving
judge
work
(basically,
the
judge’s
colleagues
and
friends).
And
fellow
judges
are
unable
or
unwilling
to
sit
in
impartial
judgment
of
their
colleagues’
misconduct.

This
confusing
pseudo-legal
process
necessitates
hiring
an
attorney.
Yet

no
monetary
remedies
are
available
through
EDR,
and
most
attorneys
in
the
jurisdiction
are
“conflicted
out”
(since
they
do
not
want
to
go
up
against
judges
in
the
jurisdiction
where
they
represent
clients).
Sadly,
too
often,
law
clerks
are
forced
to
represent
themselves,
going
up
against
the
overwhelming
force
of
the
federal
judiciary
—
thereby
exacerbating
the
enormous
power
disparity
between
fresh-out-of-law-school
clerk
and
life-tenured
federal
judge.

Picture
this:
a
20-something
recent
law
graduate
in
their
first
legal
job,
going
up
against
a
life-tenured
judge,
is
forced
to
become
investigator
and
employment
law
counselor
and
figure
out
how
to
enforce
their
rights.
It
is

not
a
fair
fight,
and
that’s
by
design.
The
process
is
ripe
for
abuse,
due
to
the
enormous
power
disparity
between
judge
and
clerk.
And
clerks
are
regularly

gas-lit
or
misled
by
PJOs
and
the
AO.

But
most
law
clerks
never
even
get
to
this
stage,
because
many
are
stymied
at
Step
1
of
the
reporting
process:
confiding
in
their

circuit
director
of
workplace
relations
(DWR),
theoretically
a
law
clerk
point
of
contact
who,
in
reality,
serves
as
HR
for
the
judiciary.
Importantly,
DWRs
do

not
have
the
proper
training
or
expertise
to
advise
clerks
on
legal
issues
—
they
are
not
required
to
have
law
degrees;
many
did
not
clerk
themselves;
and
some
do
not
even
have
employment
law
or
human
resources
experience.
Yet
too
often,
they
dissuade
clerks
from
filing
complaints,
advising
them
that
their
allegations
do
not
rise
to
the
level
of
abusive
conduct
or
that
there
aren’t
enough
co-complainants
for
them
to
be
successful,
even
though

they
do
not
have
the
expertise
to
advise
on
these
matters.

Sadly,
this
“informal
advice”
is
not
a
category
of
EDR
data
that
the
judiciary
even
collects
and
reports.
We
have

no
idea
how
often
clerks
contact
DWRs,
nor
how
many
(or
which)
judges
clerks
complain
about.
DWRs
possess
a
treasure
trove
of
potentially
actionable
judicial
misconduct
information.
While
they
are
empowered
in
the
limited
circumstance
of
an
imminent
threat
to
share
information
with
their
superiors,
mostly,
they
are
either
silent
bystanders
or
outright
enablers
of
judicial
misconduct.
Some
DWRs
know
where
the
bodies
are
buried,
yet
clerks’
informal
reports
rarely
lead
to
action
or
discipline.

EDR
lacks
meaningful
remedies.
The
best
a
clerk
can
hope
for
is
reassignment
to
a
different
judge
for
the
remainder
of
the
clerkship,
which
is
not
guaranteed,
since
it
depends
on
another
judge’s
willingness
to
take
on
an
extra
clerk
and
the
clerk’s
ability
to
potentially
uproot
their
life
again
and
move
for
another
clerkship.

And,
there
is
no
accountability
(discipline)
for
judges
who
commit
misconduct.
While
judges
occasionally
undergo
“remedial
training,”
it
is
voluntary
—
agreed
to
by
the
judge.

Considering
the
lack
of
redress,
and
the
substantial
risk
that
a
judge
will
retaliate
against
the
clerk
who
blew
the
whistle
(which
they
are
not
currently
legally
prohibited
from
doing),
it’s
a
hard
sell
to
convince
clerks
to
report
misconduct.
And
the
negligible
number
of
complaints
and
lack
of
transparent
data
—
combined
with
the
AO’s
claims
that

misconduct
is
not
a
problem
—
do
not
give
clerks
confidence
that
they
will
be
taken
seriously.

In
the
year
since
this
report
was
compiled,
the
federal
judiciary
has
been
plagued
by
numerous
scandals,
underscoring
that
reporting
and
disciplinary
processes

do
not
work.

First,
this
spring,
we
learned
that
Second
Circuit

Judge
Sarah
Merriam
was
“reprimanded”
under
the
EDR
Plan
in
December
2023
for
an
“overly
harsh
work
environment.”
The
“discipline”
she
received?
She
agreed
to
watch
some
training
videos.
No
one
—
except
perhaps
the
AO
—
honestly
believes
this
type
of
voluntary
“discipline”
will
solve
the
problem.

The
judiciary
vociferously
opposed
transparency
in
this
matter
by
redacting
the
judge’s
name
from
the
disciplinary
order,
prompting
anxious
incoming
Second
Circuit
clerks
to
reach
out
to
me
to
inquire
about
the
judge’s
identity
(which
I
did
not
know
at
the
time).
The
judiciary
does
not
understand
that

there
can
be
no
accountability
without
transparency. 

Then,
in
July,
former
Alaska
federal
judge

Joshua
Kindred
resigned
in
scandal,
after
a
20-month
Ninth
Circuit
Judicial
Council
investigation
revealing
appalling
abuse
and
sexual
harassment
in
his
chambers.
Some
in
the
judiciary
have
misleadingly
pointed
to
Kindred
as
an
example
of
internal
processes
working
well.
Yet
during
the
lengthy
investigation,
the
judiciary
did
not
protect
Kindred’s
clerks,
even
though
he
was
being
investigated
for

sexual
harassment,
by
reassigning
them
to
a
different
judge,
even
though
this
option
exists
under
EDR.
And
the
fact
that
Kindred
was
able
to
get
away
with
misconduct
for
as
long
as
he
did,
points
to
insufficient
reporting
channels.

Weeks
later,
two
reports
were
released
—
by
the

Federal
Judicial
Center
and
National
Academy
of
Public
Administration
and

U.S.
Government
Accountability
Office
—
highlighting

significant
flaws
in
EDR:
a
lack
of
standardization,
metrics
for
success,
transparency,
data
collection
and
reporting,
and
proper
training
for
those
tasked
with
overseeing
and
implementing
the
plan.

The
judiciary

stonewalled
investigators
collecting
data
for
these
reports
and
generally
refused
to
cooperate,
claiming
the
investigations
were
“duplicative”
of
its
2023
workplace
climate
survey
of
the
federal
judiciary
—
a
survey
whose
results,
importantly,
they

have
refused
to
release
publicly
due
to

“confidentiality”
concerns.
Of
course,
data
can
be
anonymized.
And
this
information
has
significant
public
importance.
The
results
must
be
quite
damaging
—
if
it
exonerated
the
judiciary,
they’d
release
it.

Then,
in
late
September,
buoyed
by
public
sentiment,
Congress
reintroduced
the
bipartisan

Judiciary
Accountability
Act
(JAA),
which
would
finally
extend
federal
anti-discrimination
protections
to
30,000
exempt
judiciary
employees;
standardize
EDR
plans
across
all
circuits;
create
multiple
confidential
reporting
channels;
establish
an
office
of
employee
advocacy
to
provide
legal
advice
to
clerks;
and
impose
data
collection
and
reporting
requirements
—
requiring
the
judiciary
to
collect
and
report
results,
publicly
and
to
Congress,
of
an
annual
workplace
culture
assessment,
demographics
of
law
clerk
hiring,
and
outcomes
of
judicial
misconduct
complaints.
Because
quantifying
the
scope
of
these
problems,
is
the
first
step
toward
crafting

effective
solutions.

And,
of
course,
former
North
Carolina
public
defender

Caryn
Devins
Strickland
has
been
engaged
in
a
protracted
legal
battle
with
the
federal
judiciary
since
2020
for
mishandling
her
sexual
harassment
complaint,
challenging
the
EDR
Plan
as
both
facially
unfair
and
unfair
as
applied
to
her.
Despite
Strickland’s
ordeal,
the
federal
judiciary
has
categorically
refused
to
take
any
responsibility
and
has
fought
Strickland
at
every
turn.
Strickland

appealed
in
October.

The
window-dressing
changes
the
federal
judiciary
has
implemented
over
the
past
few
years,
detailed
in
the
report,
are
not
serious
solutions.
An
effective
internal
dispute
resolution
system
would
promote
transparency,
accountability,
and
impartiality.

Transparency:
The
federal
judiciary
should
release
the
full
results
of
its
2023
workplace
culture
assessment,
as
well
as
EDR
data
broken
down
by
federal
circuit,
and
the
identities
of
judges
adjudicated
to
have
committed
misconduct
under
the
EDR
Plan.
And,
the
judiciary
should
commit
to
annual
public
data
disclosures
of
this
nature.

Accountability:
Judges
have
life
tenure,
but
that
does
not
mean
they
cannot
be
disciplined
through
robust
misconduct
investigations
when
DWRs
or
chief
judges
learn
about
misconduct,
unredacted
disciplinary
orders,
mandatory
remedial
training,
public
reprimand,
and
suspension.
Take
away
judges’
cases
for
a
set
period.
Perhaps
even
take
away
their
law
clerks.
Right
now,
judges
must
“agree”
to
remedial
training,
and
there
are
no
metrics
or
oversight
to
ensure
that
bad
behavior
does
not
recur.
For
judges
found
to
have
committed
misconduct,
for
example,
a
DWR
could
check
in
with
their
clerks
monthly
for
a
five-year
period,
and
the
judge
could
participate
in
mandatory
monthly
check-ins
with
the
chief
judge.

Impartiality:
The
EDR
Plan
should
be
taken
out
of
the
federal
judiciary’s
chain
of
command
and
overseen
by
neutral
third-party
civil
rights
investigators,
not
judges.

Transparency

is
accountability:
these
steps
would
deter
judicial
misconduct
and
foster
good
behavior,
because
judges’
reputations
might
finally
suffer
if
they
continued
mistreating
employees.

EDR
is
a
Band-Aid
over
a
bullet
hole.
Sweeping
reform,
including
but
not
limited
to
total
overhaul
of
the
EDR
Plan
and
extending
federal
anti-discrimination
protections
to
clerks,
is
urgently
necessary.

There
is
no
substitute
for
extending
basic
workplace
protections
to
judiciary
employees.
It
is
the
height
of
injustice
that
law
clerks
—
the
public
servants
who
support
the
daily
functioning
of
our
courts
—
lack
basic
workplace
protections
and
that
judges
are
exempt
from
the
laws
they
interpret.
The
anti-discrimination
laws
that
apply
to
most
other
workers,
should
apply
to
judiciary
employees,
too.

Judiciary
leadership
is
insular,
composed
of
judges
and
their
staunchest
defenders.
They
rarely
encounter
dissent
or
alternative
perspectives.
Even
the

Workplace
Conduct
Working
Group
tasked
with
addressing
law
clerk
issues,
does
not
include
any
law
clerks
or
law
clerk
advocates.
Until
outside
perspectives
are
invited
to
the
table
to
advise
on
reforms,
the
judiciary
will
be
plagued
by
scandal
and
critique.

Sadly,
in
the
short
term,

congressional
oversight
—
and
meaningful
judiciary
internal
reform
—
are
likely
wishful
thinking,
considering
the
political
climate
in
Washington,
congressional
intransigence,
and
federal
judiciary
obstinance.
Fortunately,
aspiring
law
clerks
can
access
a
third-party

transparency
and
accountability
resource
for
candid,
unbiased
information
about
abusive
judges
to
avoid
(and
good
bosses
to
work
for),
and
former
clerks
can
warn
prospective
clerks
without
fear
of
retaliation
by
judges.

Resources
like
my
nonprofit’s

Centralized
Clerkships
Database
do
not
require
buy-in
from
the
federal
judiciary,
nor
Congress,
nor
law
schools
to
make
the
change
that’s
clearly
necessary.
Especially
considering
the
bleak
picture
offered
by
the
AO’s
2023
report
and

what
it
signals
—
limited
recognition
of
the
scope
of
judicial
misconduct
and
limited
interest
in
implementing
effective
solutions
—
third-party
alternatives
have
never
been
more
important.

Aliza
Shatzman
is
the
President
and
Founder
of The
Legal
Accountability
Project,
a
nonprofit
aimed
at
ensuring
that
law
clerks
have
positive
clerkship
experiences,
while
extending
support
and
resources
to
those
who
do
not.
She
regularly
writes
and
speaks
about
judicial
accountability
and
clerkships.
Reach
out
to
her
via
email
at [email protected] and
follow
her
on
Twitter
@AlizaShatzman.

Ed.
note:
Welcome
to
our
daily
feature,

Quote
of
the
Day.

In
the
last
few
months,
I
have
seen
a
pickup
in
hiring.
I
am
expecting
(sign-on
bonuses)
to
come
back
a
little
bit,
but
I’m
not
sure
we
are
going
to
see
it
at
the
same
scale
as
we
did
in
2021.

—
Stephanie
Biderman,
a
recruiter
with
Major,
Lindsey
&
Africa,
in
comments
given
to
the

American
Lawyer,
on
the
return
of
the
sign-on
bonus
for
strong
corporate
candidates.
Will

signing
bonuses
flourish
once
again
within
Biglaw
as
they
did
in
2021?
Stay
tuned.

Staci
Zaretsky is
a
senior
editor
at
Above
the
Law,
where
she’s
worked
since
2011.
She’d
love
to
hear
from
you,
so
please
feel
free
to

email
her
with
any
tips,
questions,
comments,
or
critiques.
You
can
follow
her
on Bluesky, X/Twitter,
and Threads, or
connect
with
her
on LinkedIn.

Enter
your
email
address
to
sign
up
for
ATL’s

Bonus
&
Salary
Increase
Alerts.

Hunter
Biden
got
pardoned,
and
Judge
Mark
Scarsi
is
big
mad
about
it.

In
the
Delaware
gun
indictment,
Judge
Maryellen
Norieka
terminated
the
case
via
minute
order,
while
maintaining
relative
judicial
modesty.
In
contrast,
Judge
Scarsi,
the
Trump
appointee
overseeing
the
tax
case
in
California,
engaged
in
what
can
only
be
described
as
an

act
of
judicial
onanism
on
the
public
docket.

“Rather
than
providing
a
true
and
correct
copy
of
the
pardon
with
the
notice,
Mr.
Biden
provided
a
hyperlink
to
a
White
House
press
release
presenting
a
statement
by
the
President
regarding
the
pardon
and
the
purported
text
of
the
pardon,”
he
breathed
heavily,
adding
that
“The
President’s
statement
illustrates
the
reasons
for
the
Court’s
disapproval,
as
representations
contained
therein
stand
in
tension
with
the
case
record.”

If
Abbe
Lowell
had
just
docketed
the
pardon
itself,
certified
and
in
triplicate,
Judge
Scarsi
wouldn’t
have
been forced
to
yell
at
the
sitting
president.
So
if
you
think
about
it,
the
defendant
was
really
asking
for
it!

Judge
Scarsi
takes
great
umbrage
at
the
suggestion
that
this
prosecution
was
politically
motivated
—
something
he
and
Judge
Norieka
both
insisted
was

impossible
with
President
Biden
in
charge
of
the
Justice
Department.
As
independent
journalist
Marcy
Wheeler

notes,
this
required
wholesale
contortion
of
the
record
by
Scarsi.
It
also
confuses
the
almost
insuperable
standard
to
prove
vindictive
prosecution
with
the
colloquial
and

obviously
true
statement
that
politics
affected
this
process,
which
began
when
Bill
Barr
tapped
David
Weiss
to
investigate
Joe
Biden
and
his
son
and
was
the
subject
of
sustained
pressure
by
Trump
himself
and
his
congressional
allies.

Indeed,
when
the
plea
deal
blew
up
last
summer,
the
GOP
was
perfectly
willing
to
take
credit
for
it.

But
Judge
Scarsi
wasn’t
excited
about
any
of
that.

“The
Constitution
provides
the
President
with
broad
authority
to
grant
reprieves
and
pardons
for
offenses
against
the
United
States,
U.S.
Const.
art.
II,
§
2,
cl.
1,
but
nowhere
does
the
Constitution
give
the
President
the
authority
to
rewrite
history,”
he
huffed,
as
if
the
president’s
ability
to
say
any
fool
thing
he
likes
in
a
signing
statement
is
somehow
up
for
judicial
consideration.

The
court
then
spent
several
paragraphs
performatively
wanking
over
the
fact
that
the
pardon
was
issued
on
December
1,
for
all
crimes
through
December
1,
when
there
were
still
several
hours
left
in
the
day.
Did
this
make
it
a
prospective
pardon,
thus
invalidating
the
entire
exercise?

Sadly,
no.

“Under
the
canon
of
constitutional
avoidance,
the
Court
declines
to
interpret
the
warrant
in
that
manner
and
instead
understands
the
warrant
to
pardon
conduct
through
the
time
of
execution
on
December
1,”
Judge
Scarsi
sighed,
wiping
his
hands
on
his
robe.
“To
the
extent
the
pardon
encompasses
prospective
conduct,
the
Court
deems
the
prospective
component
of
the
pardon
severable
from
the
component
that
demands
the
termination
of
this
proceeding.”

Of
course,
the
canon
of
constitutional
avoidance
generally
leads
judges
to
abstain
from
opining
on
issues
which
are
not
before
them,
and
no
party
here
challenged
the
sufficiency
of
the
pardon.
But
apparently
Judge
Scarsi
could
not
restrain
himself
against
the
powerful
urge
to
spread
his
seed
all
over
the
federal
docket.

Having
had
its
way
with
the
defendant
one
last
time,
the
court
zipped
back
up
its
judicial
breeches,
agreed
to
dismiss
the
case
once
a
verified
copy
of
the
pardon
is
docketed,
and
wandered
off
for
a
cigarette
in
the
chambers
lav.

US
v.
Biden [Delaware
Docket
via
Court
Listener]

US
v.
Biden [California
Docket
via
Court
Listener]

Liz
Dye lives
in
Baltimore
where
she
produces
the
Law
and
Chaos substack and podcast.

Another
article
about
bonuses!
Kramer
Levin
brightened
its
associates’
days
by
announcing
bonuses!
The
firm
reported
$435,224,000
in
gross
revenue
in
2023
and
profits
per
equity
partner
of
$2,410,000
in
2023
according
to
the
most
recent
Am
Law
100,
and
is
matching
the
Milbank
scale
for
both
annual
and
special
bonuses!
Here’s
the
scale:

Signs
also
point
to
this
being
Kramer
Levin’s
final
round
of
bonuses!

The
firm
is
planning
to
merge
with
Herbert
Smith
Freehills
to
make
HSF
Kramer
in
the
near
future.
Hard
to
think
of
a
better
last
hurrah
than
paying
your
employees.

We
like
hearing
about
bonuses
almost
as
much
as
you
enjoy
spending
them.
As
soon
as
your
firm’s
memo
comes
out,
please email
it
to
us
(subject
line:
“[Firm
Name]
Bonus”)
or
text
us
(646-820-8477).
Please
include
the
memo
if
available.
You
can
take
a
photo
of
the
memo
and
send
it
via
text
or
email
if
you
don’t
want
to
forward
the
original
PDF
or
Word
file.

And
if
you’d
like
to
sign
up
for
ATL’s
Salary
&
Bonus
Alerts,
please
scroll
down
and
enter
your
email
address
in
the
box
below
this
post.
If
you
previously
signed
up
for
the
bonus
alerts,
you
don’t
need
to
do
anything.
You’ll
receive
an
email
notification
within
minutes
of
each
bonus
announcement
that
we
publish.

Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s.
 He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boatbuilder
who
cannot
swim, a
published
author
on
critical
race
theory,
philosophy,
and
humor,
and
has
a
love
for
cycling
that
occasionally
annoys
his
peers.
You
can
reach
him
by
email
at [email protected] and
by
tweet
at @WritesForRent.

Enter
your
email
address
to
sign
up
for
ATL’s

Bonus
&
Salary
Increase
Alerts.

It
was
recently
revealed
that
two
Democratic
appointees
to
the
federal
bench
—
Max
O.
Cogburn
Jr.
and
Algenon
L.
Marbley
—
rescinded
their
decisions
to
move
to
senior
status
in
the
wake
of
Donald
Trump’s
2024
election
victory.
This
means
those
are
two
fewer
seats
Trump
will
get
to
fill
with
Federalist
Society
acolytes.
Which,
given
the
political
and
judicial
landscape
that
exists
in
2024,
is
a
logical
decision.

But
Senator
Mitch
McConnell
is
pretty
pissed
about
it.
As

reported
by
The
Hill,
McConnell
went
off
on
the
jurists
for
their
choice.

McConnell
called
the
unusual
decisions
to
forgo
retirement
following
Trump’s
sweeping
victory
last
month
a
“partisan”
gambit
that
would
undermine
the
integrity
of
federal
courts.

“They
rolled
the
dice
that
a
Democrat
could
replace
them,
and
now
that
he
won’t,
they’re
changing
their
plans
to
keep
a
Republican
from
doing
it,”
McConnell
said
on
the
Senate
floor.

“It’s
a
brazen
admission.
And
the
incoming
administration
would
be
wise
to
explore
all
available
recusal
options
with
these
judges,
because
it’s
clear
now
that
they
have
a
political
finger
on
the
scale,”
he
said.

“This
sort
of
partisan
behavior
undermines
the
integrity
of
the
judiciary.
It
exposes
bold
Democratic
blue
where
there
should
only
be
black
robes,”
McConnell
warned.

Pardon
me
while
I
roll
my
eyes
so
hard.

Seriously
—
the
fucking
gall
of
this
guy!
Because

in
March
of
2020,
McConnell
himself
reportedly
“initiated
outreach
in
an
effort
to
heighten
awareness
among
judges
nominated
by
Presidents
Ronald
Reagan,
George
Bush
and
George
W.
Bush
that
making
the
change
now
would
be
advantageous.”
I
guess
McConnell
thinks
only
*he*
should
be
able
to

manipulate
judicial
retirements
to
maximize
his
ideological
preferences.

While
we’re
on
the
subject
of
“partisan
behavior”
that
“undermines
the
integrity
of
the
judiciary,”
let’s
talk
about

stolen
Supreme
Court
seats,
shall
we?
Remember,
this
is
the
guy
who
made
history
by

keeping
the
seat
of
the
late
Justice
Antonin
Scalia
vacant
for
a
year
just
so
a
Democrat
(Barack
Obama)
wouldn’t
be
able
to
name
his
replacement.
It
was
obvious
from
jump
that
his
stated
justification
for
the
unprecedented
move
(because
there
was
an
election
happening
nine
months
later)
was
merely
an
excuse
for
a
blatant
power
play.
But
when
McConnell
turned
around
and

DID
THE
EXACT
OPPOSITE
when
Ruth
Bader
Ginsburg

died
six
WEEKS
before
the
2020
election,
his
true
motives
became
undeniable.

So
spare
me
the
histrionics.
Judges
Cogburn
and
Marbley
and
merely
playing
the
game
McConnell
created.
Good
on
them
for
seeing
the
reality
of
the
situation.

Earlier:

Federal
Judges
Declaring
Backsies
On
Retirement
Since
Trump
Won
The
Election

Mitch
McConnell
Urges
Judges
To
Make
Way
For
Younger,
Fitter
Reactionaries

Kathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of

The
Jabot
podcast,
and
co-host
of

Thinking
Like
A
Lawyer.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email

her
with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter

@Kathryn1 or
Mastodon

@[email protected].

Currently
there
are
cases
before
the
courts
where
fake
documents
are
alleged
to
have
been
provided
in
tender
applications. 

Fraud
and
theft
seem
to
have
become
endemic,
though
it
is
generally
only
the
most
sensational
cases
that
are
reported
in
newspapers.

According
to
Zimstat
there
were
38
042
cases
of
theft
in
Zimbabwe
reported
in
the
first
quarter
of
this
year,
3
455
cases
of
fraud
and
83
cases
of
corruption.

Potential
theft
or
fraud
is
a
concern
that
most
businesses
have.
However,
detecting
such
dishonesty
is
far
from
easy,
particularly
where
there
is
collusion
among
employees
or
managerial
staff
or
where 
such
dishonesty
has
become 
accepted
as
normal
among
employees.

It
is
unlikely
that
even
honest
workers
will
report
the
dishonesty
of
colleagues.
Often
the
only
way
to
discover
what
is
going
on
is
to
have
an
undercover
agent
among
the
employees,
according
to
Safeguard
senior
investigations
manager
Nelson
Zimunya.

The
undercover
investigators
carry
out
normal
employee
duties
but
keep
an
eye
open
for
any
type
of
dishonesty
or
any
conduct
or
weaknesses
in
the
company’s
systems
that
could
adversely
affect
its
profitability.

“The
undercover
operatives
are
carefully
selected
and
vetted
and
undergo
a
Truth
Verification
Test
prior
to
their
deployment,”
Mr
Zimunya
said.
“They
undergo
intensive
undercover
operations
training 
to
ensure
their
effectiveness.” 

Their
brief
is
to
observe
and
report
on
a
variety
of
issues.
Apart
from
reporting
any
theft
or
dishonesty
that
they
become
aware
of,
they
observe
and
report
to
their
supervisors
at
Safeguard
on
any
misconduct
they
have
observed.
The
agent’s
briefing
will
be
in
line
with
the
customer’s
concerns. 

“If
anything
of
urgent
interest 
is
uncovered
that
requires
immediate
attention,
either
I
or
the
area
controller
communicate
directly
with
the
company,”
Mr
Zimunya
said.

“Various
forms
of
dishonesty
and
corruption
have
become
common
and
cannot
easily
be
detected
except
through
the
deployment
of
undercover
operatives.
Dishonesty
has
sadly
become
an
accepted
fact
of
life
in
which
even
those
who
condemn
it
often
participate
at
one
time
or
another.

“Collusion
or
the
unwillingness
of
colleagues
to
betray
one
of
their
own
makes
detecting
theft
or
fraud
or
even
rudeness
to
customers
difficult
for
senior
managers
to
detect
or
be
made
aware
of.

“However,
infiltrating
an
agent
whose
mission
is
to
observe
and
report
on
any
malpractices
he
or
she
becomes
aware
of
enables
us
to
make
a
company’s
top
officials
aware
of
what
is
going
on,
whether
it
be
theft,
fraud,
misuse
of
company
property
or
time,
managerial
abuse,
rudeness
to
customers, 
labour
unrest,
gossip
or
comments
about
the
employer,
or
any
other
issue
the
company
wants
to
be
made
aware
of,”
Mr
Zimunya
said.

“When
theft,
fraud
or
any
other
criminal
activity
has
been
detected,
our
investigations
enable
us
to
collect
and
provide
the
evidence
needed
for
a
criminal
conviction,”
he
added.

Post
published
in:

Featured

In
a
letter
written
on
21
November
2024
to
the
Ministry
of
Finance,
Economic
Development
and
Investment
Promotion,
ZADHR,
which
is
represented
by
their
lawyer, Precious
Chakasikwa of Zimbabwe
Lawyers
for
Human
Rights,
asked
the
Ncube-led
ministry
to
provide
it
with
an
account
of
how
much
special
surtax
on
sugar
content
in
beverages
had
been
collected
from
9
February
2024,
when
government
gazetted
Statutory
Instrument
16/24,
the
Customs
and
Excise
(Tariff)
(Amendment)
Notice,
2024
(No.
5).

ZADHR
also
wants
the
Ministry
of
Finance,
Economic
Development
and
Investment
Promotion
to
furnish
it
with
an
account
of
what
cancer
drugs
and
equipment
have
been
procured
since
the
introduction
of
the
sugar
tax
and
the
list
of
hospitals
to
which
these
have
been
distributed
to.

The
doctor’s
association
made
the
request
for
access
to
the
information
in
terms
of
the
provisions
of
section
7
of
the
Freedom
of
Information
Act.

ZADHR’s
request
is
aimed
at
promoting
transparency
and
accountability
in
the
use
of
public
funds.

In
February,
government introduced
a
levy
on
sugary
beverages
claiming
that
this
was
aimed
at
discouraging
people
from
consuming
too
much
sugar,
which
it
blamed
for
causing
some
forms
of
cancer.

Ncube
justified
the
introduction
of
the
sugar
tax
as
a
response
to
growing
concerns
on
the
adverse
effects
of
consumption
of
sugar,
stating
that
the
funds
generated
from
the
levy
would
be
ring-fenced
for
therapy
and
procurement
of
cancer
equipment.

Post
published
in:

Featured

The
Right
to
challenge
Unconstitutional
Laws
and
Conduct
:
The
Constitutional
Court’s
Ruling

In
a
judgment
delivered
earlier
this
year, Combined
Harare
Residents’
Association
&
Others
v
Minister
of
Local
Government,
Public
Works
and
National
Housing [link],
the
Constitutional
Court
considered
the
relationship
between
local
authorities
and
the
central
government. 
We
analysed
the
Court’s
judgment
on
this
topic
in
Constitution
Watch
5/2024 [link].

In
the
course
of
its
judgment
the
Court
issued
progressive
rulings
on
the
right
of
citizens
to
challenge
unconstitutional
conduct
and
defend
the
Constitution,
and
we
shall
deal
with
that
aspect
of
the
judgment
in
this
bulletin.

Issues
in
the
Case

The
Constitutional
Court
was
being
asked
to
confirm
an
order
of
the
High
Court
declaring
section
314
of
the
Urban
Councils
Act
[which
empowers
the
Minister
responsible
for
local
government
to
overturn
decisions
and
resolutions
of
local
authorities]
to
be
unconstitutional
and
void.

Before
deciding
the
main
issue
–
i.e.
whether
section
314
is
unconstitutional
–
the
Constitutional
Court
had
to
decide
two
preliminary
questions:

• First,
  did
  the
  High
  Court
  have
  jurisdiction
  to
  make
  the
  order
  it
  did?
• Secondly,
  did
  the
  applicants
  have
  a
  right
  to
  challenge
  the
  constitutional
  validity
  of
  section
  314
  since
  they
  had
  not
  shown
  that
  any
  of
  their
  fundamental
  rights,
  guaranteed
  by
  the
  Declaration
  of
  Rights
  in
  the
  Constitution,
  had
  been
  infringed?

The
Constitutional
Court
answered
both
these
questions
affirmatively: 
the
High
Court
had
jurisdiction
to
make
its
order
and
the
applicants
had
a
right
to
challenge
the
constitutionality
of
section
314. 
The
Court
was
not
entirely
unanimous,
however. 
Judge
Garwe
delivered
a
dissenting
judgment
in
which
he
considered
that
the
High
Court
should
have
declined
to
make
the
order
because
the
applicants
had
not
pleaded
their
case
properly
and
had
not
shown
there
was
an
actual
dispute
between
the
parties. 
The
rest
of
the
judges
on
the
Court
did
not
take
so
narrow
a
view
however,
as
we
shall
explain
below.

Jurisdiction
of
the
High
Court

All
the
judges
of
the
Constitutional
Court
were
agreed
that
the
High
Court
as
a
general
rule
has
jurisdiction
to
enforce
the
Constitution
directly; 
this
jurisdiction
is
given
by
section
171(1)(c)
of
the
Constitution. 
The
only
exceptions
are
set
out
in
section
167(2)
of
the
Constitution,
which
gives
the
Constitutional
Court
exclusive
jurisdiction:

• to
  advise
  on
  the
  constitutionality
  of
  proposed
  legislation,
  where
  the
  legislation
  has
  been
  referred
  to
  the
  Constitutional
  Court
  by
  the
  President
  or
  by
  a
  Vice-President
  or
  Minister
• to
  decide
  disputes
  in
  presidential
  elections
  and
  disputes
  over
  the
  qualifications
  of
  a
  Vice-President,
  and
• to
  decide
  whether
  Parliament
  or
  the
  President
  has
  failed
  to
  fulfil
  a
  constitutional
  obligation.

In
all
other
cases,
the
High
Court
has
jurisdiction
to
enforce
the
Constitution
and
decide
applications
challenging
the
constitutional
validity
of
legislation.

Grounds
on
which
the
Constitutionality
of
Laws
can
be
Challenged

All
the
judges
of
the
Constitutional
Court
agreed
that
an
applicant
who
challenges
the
constitutional
validity
of
a
law
does
not
have
to
show
that
his
or
her
rights
under
the
Declaration
of
Rights
have
been
infringed
by
the
law.

Instead,
the
majority
of
the
Court
held
that
the
constitutionality
of
a
law
can
be
challenged
by
persons
relying
on
section
2(1)
of
the
Constitution
or,
more
broadly,
on
the
principle
of
legality.

Section
2(1)
of
the
Constitution declares
the
Constitution
to
be
the
supreme
law
and
invalidates
any
law,
practice,
custom
or
conduct
inconsistent
with
it. 
The
majority
of
the
judges
held
that
section
2(1)
arguably
implies
that
anyone
who
can
show
some
connection
to
a
law,
practice,
custom
or
conduct
is
entitled
to
approach
a
court
to
have
it
declared
invalid
on
the
ground
that
it
is
inconsistent
with
the
Constitution.

The
principle
of
legality:  Under
this
principle,
administrative
conduct
is
legitimate
and
valid
only
if
it
is
authorised
by
a
law; 
anything
done
in
contravention
of
a
statute
or
the
Constitution
is
ultra
vires
and
void. 
This
principle
gives
the
High
Court
jurisdiction
to
rule
on
the constitutional validity
of
laws.

Legal
Standing
of
Persons
to
Challenge
the
Constitutionality
of
Laws

Under
the
common
law,
only
persons
who
can
show
a
direct
or
substantial
interest
in
a
legal
issue
have
the
right
to
apply
to
a
court
for
the
issue
to
be
decided. 
The
right
to
challenge
the
constitutional
validity
of
laws
is
much
wider,
according
to
the
Court:

“direct
challenges
to
assert
the
supremacy
of
the
Constitution
must
be
open
to
all
citizens
who
are
civic
minded
and
wish
to
see
the
rule
of
law
prevail. 
Only
those
who
bring
frivolous
and
vexatious
proceedings
without
any
intention
of
obtaining
relief
from
such
proceedings
must
be
denied
standing
and
audience
by
the
courts.”

Applicants
do
not
have
to
show
that
one
of
their
fundamental
rights,
guaranteed
by
the
Declaration
of
Rights,
has
been
infringed
by
the
law
that
is
being
challenged.

Judge
Patel
suggested
that
the
Court
should
give
rulings
on
constitutional
questions
of
paramount
public
and
national
importance,
even
on
the
application
of
persons
who
cannot
show
a
direct
and
substantial
interest
in
the
issues
in
dispute.

Comments

The
Constitutional
Court’s
rulings
on
the
jurisdiction
of
the
High
Court
to
decide
constitutional
issues,
and
the
right
of
parties
to
bring
constitutional
issues
to
court
in
the
public
interest,
are
a
welcome
departure
from
the
Court’s
previous
decisions,
which
by
narrowly
insisting
on
procedural
correctness
allowed
the
Court
to
avoid
deciding
important
constitutional
issues.

Veritas
makes
every
effort
to
ensure
reliable
information,
but
cannot
take
legal
responsibility
for
information
supplied

Post
published
in:

Featured

Local
Authorities
and
Central
Government
:
The
View
From
the
Constitutional
Court

Disclosures
of
mismanagement
in
the
governance
of
Harare,
and
attempts
by
the
Minister
of
Local
Government
to
interfere
in
the
City’s
affairs,
make
it
topical
to
look
at
what
the
Constitution
says
about
the
relationship
between
local
authorities
and
central
government,
and
how
the
Constitutional
Court
has
interpreted
the
Constitution
in
this
regard.

The
Constitution
and
Local
Authorities

Section
3
of
the
Constitution
declares
that
devolution
and
decentralisation
of
governmental
powers
are
principles of
good
governance,
and
good
governance
is
itself
declared
by
section
3
of
the
Constitution
to
be
a
foundational
value of
Zimbabwe. 
More
specifically,
Chapter
14
of
the
Constitution
deals
with
provincial
and
local
government,
emphasising
the
importance
of
devolving
powers
and
responsibilities. 
Thus
section
264(1)
says:

“Wherever
appropriate,
governmental
powers
and
responsibilities
must
be
devolved
to
…
local
authorities
which
are
competent
to
carry
out
those
responsibilities
efficiently
and
effectively.”

Subsection
(2)
of
the
section
explains
the
reasons
for
devolving
powers
and
responsibilities:

“(a)
to
give
powers
of
local
governance
to
the
people
and
enhance
their
participation
in
making
decisions
affecting
them;

 (b)
to
promote
democratic,
effective,
transparent,
accountable
and
coherent
government
in
Zimbabwe;

 (c)
to
preserve
and
foster
the
peace,
national
unity
and
indivisibility
of
Zimbabwe;

 (d)
to
recognise
the
right
of
communities
to
manage
their
own
affairs
and
to
further
their
development;

      
…”

Section
276(1)
goes
on
to
say:

“Subject
to
this
Constitution
and
any
Act
of
Parliament,
a
local
authority
has
the
right
to
govern,
on
its
own
initiative,
the
local
affairs
of
the
people
within
the
area
for
which
it
has
been
established,
and
has
all
the
powers
necessary
for
it
to
do
so.”

There
has
to
be
a
balance
between
the
powers
of
central
government
and
those
of
local
authorities. 
While
local
authorities
must
be
allowed
to
govern
local
affairs
on
their
own
initiative,
they
cannot
be
given
complete
autonomy. 
The
central
government
has
a
duty
to
govern
the
country
as
a
whole,
and
its
laws
must
be
applicable
to
everyone
wherever
they
live. 
Local
authorities
cannot
have
such
complete
autonomy
that
they
override
national
laws. 
On
the
other
hand,
laws
made
by
the
central
government
–
Acts
of
Parliament
–
must
not
unduly
restrict
the
powers
of
local
authorities
to
regulate
their
local
affairs. 
As
we
have
said,
there
has
to
be
a
balance.

The
Urban
Councils
Act

The
Urban
Councils
Act,
as
its
name
indicates,
regulates
the
affairs
of
urban
local
authorities. 
It
long
predates
the
Constitution
and
pays
little
regard
for
local
autonomy
–
so
little
regard
that
it
gives
the
Minister
of
Local
Government
very
wide
powers
to
control
the
activities
of
urban
councils. 
For
example:

• Under
  section
  4A
  the
  Minister
  can
  appoint
  up
  to
  one-third
  of
  the
  councillors
  of
  any
  local
  authority,
  who
  hold
  office
  at
  the
  Minister’s
  pleasure.
  [section
  274(2)
  of
  the
  Constitution,
  on
  the
  other
  hand,
  says
  that
  councillors
  are
  to
  be
  elected
  by
  voters
  in
  the
  areas
  concerned].
• Under
  section
  206
  of
  the
  Act
  the
  Minister
  can
  direct
  councils
  to
  establish
  townships
  and,
  if
  they
  fail
  to
  do
  so,
  he
  or
  she
  can
  establish
  townships
  on
  their
  behalf.
• The
  Minister
  has
  a
  veto
  over
  councils’
  by-laws; 
  that
  is
  to
  say,
  the
  Minister
  must
  approve
  all
  their
  by-laws
  and
  under
  section
  232
  he
  or
  she
  can
  make
  by-laws
  on
  their
  behalf.
• Under
  section
  313
  the
  Minister
  can
  give
  councils
  policy
  directives
  “in
  the
  national
  interest”
  and
  councils
  must
  comply
  with
  them.
• Under
  section
  314
  the
  Minister
  can
  direct
  councils
  to
  reverse,
  suspend
  or
  rescind
  resolutions
  and
  other
  action
  taken
  by
  them.

The
validity
of
these
powers,
particularly
those
conferred
on
the
Minister
by
section
314
of
the
Act,
was
considered
by
the
Constitutional
Court
in
a
Veritas case
decided
earlier
this
year, Combined
Harare
Residents’
Association
&
Others
v
Minister
of
Local
Government,
Public
Works
and
National
Housing [link].

The
View
of
the
Constitutional
Court

The
Court’s
decision
was
not
unanimous,
with
two
judges
delivering
separate
dissenting
judgments. 
A
large
part
of
all
the
judgments
was
taken
up
with
issues
of
jurisdiction
–
the
power
of
courts
to
deal
with
constitutional
questions
–
and
the
right
of
citizens
to
challenge
the
constitutionality
of
legislation. 
On
these
matters
the
judges
made
far-reaching
pronouncements
which
we
shall
consider
in
another
Constitution
Watch. 
In
this
bulletin
we
shall
confine
ourselves
to
the
Court’s
decision
on
the
relationship
between
central
government
and
local
authorities.

The
majority
judgment

Judge
Makarau
delivered
the
judgment
of
the
majority
of
the
Court. 
The
main
points
she
made
were:

• One
  of
  the
  objectives
  of
  devolving
  powers
  set
  out
  in
  section
  264(2)
  of
  the
  Constitution
  is
  to
  enhance
  democratic
  participation
  in
  government
  by
  all
  citizens
  and
  communities. 
  Another
  objective
  is
  to
  preserve
  the
  national
  unity
  and
  indivisibility
  of
  Zimbabwe. 
  Both
  these
  objectives
  must
  be
  given
  their
  due
  weight.
• It
  is
  for
  central
  government
  to
  determine
  when
  devolution
  of
  power
  may
  occur
  and
  whether
  local
  authorities
  are
  competent
  to
  exercise
  the
  devolved
  power.
• The
  right
  of
  local
  authorities
  to
  run
  local
  affairs
  must
  be
  read
  subject
  to
  the
  Constitution
  and
  any
  Act
  of
  Parliament.
• The
  Minister
  responsible
  for
  local
  government
  must
  retain
  some
  residual
  oversight
  powers
  to
  ensure
  that
  the
  core
  values
  of
  devolution
  are
  upheld
  and
  that
  national
  unity
  is
  maintained.
• Hence
  the
  Minister
  must
  be
  able
  to
  direct
  councils
  to
  rescind,
  alter
  or
  suspend
  their
  resolutions
  under
  section
  314
  of
  the
  Urban
  Councils
  Act,
  but
  the
  Minister’s
  power
  under
  the
  section
  cannot
  be
  exercised
  on
  mere
  whim:

Ø The
exercise
of
the
power
must
be
informed
and
rational

Ø The
Minister
may
exercise
the
power
only
where
a
local
authority’s
resolution
or
decision
is
demonstrably
not
in
the
interests
of
the
inhabitants
of
the
area
or
is
not
in
the
public
or
national
interest

Ø The
Minister
must
give
reasons
for
exercising
the
power,
showing
how
the
local
authority’s
resolution
is
demonstratively
not
in
the
national
or
public
interest
or
in
the
interests
of
inhabitants
of
the
area,
and

Ø the
Minister’s
decision
is
subject
to
review
by
the
courts
in
terms
of
the
Administrative
Justice
Act.

There
is
one
further
point
which
the
learned
Judge
did
not
make,
but
which
is
implicit
in
her
reference
to
the
Administrative
Justice
Act: 
before
the
Minister
directs
a
council
to
rescind,
suspend
or
alter
a
resolution
the
Minister
must
inform
the
council
of
the
proposed
directive
and
give
councillors
an
opportunity
to
make
representations
as
to
why
the
directive
should
not
be
given
–
section
3(2)
of
the
Act.

The
minority
judgment

Judge
Patel,
giving
a
minority
judgment,
would
have
gone
further. 
He
considered
that
the
Minister’s
power
under
section
314
undermines
the
concept
of
devolution
laid
down
in
the
Constitution. 
While
the
Constitution
allows
central
government
to
supervise
local
authorities
to
ensure
effective
and
efficient
administration
throughout
the
country,
the
supervision
must
be
benign,
supportive
and
permissive
rather
than
oppressive. 
Section
314,
on
the
contrary,
is
bluntly
undemocratic. 
In
the
learned
Judge’s
view
therefore
the
section
is
patently
unconstitutional.

Comment

Veritas
prefers
the
view
expressed
by
Judge
Patel
(of
course
we
would
–
Veritas
sponsored
the
case
to
have
section
314
declared
unconstitutional
and
void). 
That
said,
the
judgment
of
the
majority
of
the
Court
is
authoritative
and
will
go
a
long
way
to
curtail
Ministerial
power
to
interfere
in
local
authority
affairs:

• Ministers
  will
  be
  able
  to
  overturn
  only
  those
  council
  decisions
  that
  are
  patently
  contrary
  to
  the
  public
  or
  national
  interest
  or
  contrary
  to
  the
  interests
  of
  people
  who
  live
  in
  the
  council
  area
• Ministers
  will
  have
  to
  consult
  councils
  before
  overruling
  their
  decisions
• Ministers
  will
  have
  to
  give
  reasons
  for
  overruling
  council
  decisions,
  and
• Ministers
  may
  be
  taken
  to
  court
  if
  they
  exceed
  their
  powers.

Putting
it
very
briefly: 
the
Constitutional
Court
has
ruled
that
Ministers
of
Local
Government
can
no
longer
act
like
dictators.

Veritas
makes
every
effort
to
ensure
reliable
information,
but
cannot
take
legal
responsibility
for
information
supplied

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published
in:

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