Whiff of pressure leaves a bad smell
Last week the Constitutional Court proved that it sometimes feels the pressure of the political context in which it exists. It did deliver a compelling, and frankly unanswerable, judgment on whether or not section 8(a) of the Judges’ Remuneration Act is constitutionally acceptable or not. All 10 judges agreed that it was not consistent with the Constitution.
But, rather disturbingly, in the details of the judgment the court noted that there was disagreement over a point of law not relevant to the main case. Regarding that disagreement, the judgment merely noted that three of the 10 judges dissented with the majority, but it did not name these dissenters.
This is worrying. It is unprecedented and leaves us guessing about whether there is legal merit in this non-attribution of the dissent, or whether it reveals a sense of political vulnerability on the part of the court. Let us reflect on this important sideshow to the main case.
First, the disagreement was about whether, in future, it might be possible for Parliament to pass a law of general application that extends, say, the term of office of the chief justice but not other judges in the Constitutional Court. Seven judges think that the distinction between the chief justice and other judges will always be unconstitutional and three disagree. This was not relevant to the main issues before the court; it was a hypothetical question.
But the fact that the question was “merely” hypothetical should not be overstated. For one thing, the question directly affects the Bill which Cabinet recently proposed to bring about changes to the amendment of the Judges’ Remuneration Act. In a sense, therefore, the court was acceding to the lawyers’ request to comment on the Bill. So this was not really a mere hypothetical issue that we can shelve as impotent obiter dicta comments. They directly affect a Bill and because of that it is important that we know who dissented and why.
If the court deemed the hypothetical question important enough to comment on, why would it be shy about filling out the constitutional argument and analysis, including the areas of dispute? If, indeed, it was not important enough to warrant full and transparent treatment, why mention it at all? Why not simply wait for the issue to be brought before the court as might have happened if the Bill was passed in its current form?
One final contextual point: it is unprecedented not to name those who dissent. This alone suggests that it was not an easy or innocuous decision by the court. It was a motivated decision and we are left to guess the motivation because we are not told why anonymity was chosen.
We are forced to consider the following questions: Does the non-attribution of the dissent have anything to do with law, or was it a matter of politics? And, if it was a matter of politics, what are the consequences for judicial independence?
The most obvious reason for what happened must be that the judges decided the case was so sensitive politically that a unified voice needed to be heard on the main issues. To name those who dissented on an issue that is arguably a sideshow might lead to speculation that those judges want to become chief justice. The reasoning might therefore have ended in the conclusion that a minuscule loss in transparency is negligible when considering the bigger political gain of having a unified court speaking on the main issues. Is that sort of justification—if that is roughly what happened—acceptable?
Surely not? It is deeply worrying that the Constitutional Court might have been playing a bit of politics last week. The very point and meaning of judicial independence is that the court must act without fear of what the political impact of its work will be. It should not guess the political consequences of telling us which judges disagreed on a point of law, even if that point was not a live issue in the case.
The decision not to name the dissenting judges means the court did not feel sufficiently independent of the political powers of the day.
It feared the political abuse that might come with full legal transparency. Why else would it even calculate the pros and cons, politically, of naming or not naming those who dissent on legal matters?
This kind of consideration should never come into play. It clearly did, however, and that means the court feels some degree of political vulnerability. This, in turn, undermines the court’s independence. Why? Because independence means, precisely, that when you do feel political pressure, you ignore that pressure. By deciding to not tell us who dissented, the court in effect decided to take into account political pressure instead of ignoring it.
Last week’s judgment is therefore bittersweet: on the one hand, the court is independent enough to find against the president, but on the other hand it feels sufficiently pressured politically to ignore the good habit of publicly stating reasons for a judgment and naming individual judges in the process of outlining points of agreement and disagreement.
Now we are left to guess what went down behind the scenes, and why. That undermines judicial transparency and we can only hope the decision to be secretive will never be repeated.
Eusebius McKaiser is a political analyst at Wits University