Judges vs the masses, George Devenish, Business Day, Commentary :
South African constitutional law is fascinating and controversial. It is probably the most interesting, challenging and complex jurisprudence of its kind in the world.
What epitomises this is the antimajoritarian or countermajoritarian dilemma. In countries with supreme constitutions, such as ours, judges - who are appointed and not elected - interpret their constitutions and use a testing right in a process of judicial review to invalidate legislation or
executive conduct conflicting with it, giving rise to the antimajoritarian dilemma.
The final word on constitutional issues is given to the courts, which have the power to declare invalid legislation or conduct of a democratically elected executive, if it is in conflict with the constitution.
This acute problem of reconciling the testing right of the courts with democracy is illustrated by the famous judgment in the US of the Supreme Court - in Brown v Board of Education - in which this court in 1954 reversed a previous decision validating the policy of "separate but equal", or segregation, and held that separate facilities for separate races were inherently inferior.
This judgment plunged the Supreme Court into the maelstrom of political controversy in relation to race and segregation, and heralded the emergence of the historic civil rights movements in the US. In this milestone judgment, the Supreme Court assumed a quasi-executive role and, in effect, initiated a new policy.
Even more than the Brown case, Roe v Wade has proved to be explosively divisive. This case related to the invalidation of legislation prohibiting abortion, an issue on which the American public is bitterly divided. Judicial review and the testing right of the courts involve a body that is not elected in telling the people's elected representatives that they cannot govern as they like. This is in clear conflict with the cardinal idea of representative democracy in America.
This decision has been scathingly and persistently criticised as being "a statute in the guise of judicial opinion" and therefore a judicial usurpation of the role of the legislature. According to a pre-eminent scholar, Prof Ronald Dworkin, this has resulted in a "war" and has "not flagged since". He says "abortion is tearing America apart. It is distorting its politics, and confounding its constitutional law." More than any other case, it illustrates the controversial nature of the testing right and the antimajoritarian dilemma found in American law.
The testing right has also proved controversial in SA's tempestuous, colourful but troubled history with the exercise of such right in the Transvaal Republic in the famous case of Brown v Leyds.
In this case, chief justice Kotze declared a law of the volksraad invalid, thereby bringing about a constitutional crisis that led to his ignominious dismissal by president Kruger, who irately declared, "with appropriate biblical allusion, that the testing right was a principle invented by the Devil".
In the 1950s, the exercise of the testing right by the Appellate Division of the Supreme Court of SA, in relation to the entrenched provisions of the South Africa Act, sparked an unprecedented constitutional crisis - relating to the notorious removal of coloured voters from the common voters' roll - between the Appellate Division and the Union Parliament that lasted for five years. It involved the questionable packing of the Appellate Division. The Harris and High Court of Parliament cases involved the testing right and were clearly antimajoritarian.
But the majority of the court in the last case in this saga, the Collins case, retreated from the politically problematic consequences of antimajoritarism. Only the courageous dissenting judgment of Judge Oliver Schreiner was antimajoritarian.
In the 1996 case of the Executive Council of the Western Cape Legislature v President of the Republic of SA, the Constitutional Court used the testing right and invalidated a law of the democratic Parliament.
This sensational case was brought about when president Nelson Mandela, using the powers granted to him by the amended Local Government Transition Act, marked out by proclamation the local ward boundaries for the municipal elections in a manner favouring the African National Congress (ANC).
A constitutional crisis was looming perilously, threatening to obstruct the conducting of nationwide local government elections and stall the process of democratic transformation taking place in SA. This was aggravated by the National Party's pledge to defend the Western Cape's autonomy by rolling mass action, if the courts did not defend it.
The Constitutional Court, headed by Judge Chaskalson, in a carefully worded and judiciously reasoned judgment, invalidated the president's proclamation and Parliament's amendment of the Local Government Transition Act.
President Mandela responded with characteristic statesmanship by praising the judgment and observing that "this judgment is not the first, nor the last, in which the Constitutional Court assists both the government and society to ensure constitutionality and effective governance".
The president thereby, with manifest maturity and tact, defused a crisis that had arisen out of the antimajoritarian dilemma inherent in our constitution.
As a result, both the court and the Mandela government emerged unscathed from the crisis and had engaged the most fundamental questions of constitutional law and matters of grave public concern. This is in marked contrast to the almost belligerent attitude of the aggrieved apartheid government of Dr Malan, to the decision in the Harris case in the early 1950s.
The Western Cape case is a victory for constitutional government, since for the first time the Constitutional Court had invalidated a highly politicised statute, passed by a democratically elected and legitimate Parliament and a president, venerated and acclaimed both nationally and internationally for his courage and sagacity, who responded with characteristic magnanimity to the court's decision. The ship of state was thereby navigated through the turbulent seas of potentially hazardous conflict.
Since 1994, with the new democratic dispensation, as a result of the kind of wise political leadership displayed by president Mandela in the Western Cape case, we have avoided a constitutional crisis caused by judicial review and the antimajoritarian dilemma, although some statements made by ANC politicians have disparaged the independence and legitimacy of the courts.
For example, in a statement by the national executive on the ANC's 93rd anniversary, it was said that some judges did not see themselves as "part of the masses" and that there was a need to "transform the collective mind-set of the judiciary to bring it into consonance with the aspiration of millions engaged in the struggle to liberate our country from white minority domination".
In the turbulent times that lie ahead when the courts will, among other things, have to take controversial decisions relating to President Jacob Zuma , national director of public prosecutions Menzi Simelane and Judge- President John Hlophe, it remains to be seen whether the wise and magnanimous approach of president Mandela will continue or whether the antimajoritarian dilemma will cause a constitutional crisis.
Monday, 12 April 2010
Judges vs The Masses
THEMES : justice