Comment and Analysis

What the judicial review should be about

Eusebius McKaiser

No one likes an anticlimax. But, sadly, Justice Minister Jeff Radebe does not care about leaving us unsatisfied, writes Eusebius McKaiser.

No one likes an anticlimax. But, sadly, Justice Minister Jeff Radebe does not care about leaving us unsatisfied. The release of the much anticipated judicial review discussion document this week turned out to be a nonevent. The minister told us how much he loves constitutional supremacy, catching some of his critics off-guard.

Yet, in spite of this welcome (if unnecessary) reminder of government’s commitment to constitutional supremacy, the event was a disappointment. Nothing substantive was said about the scope, nature and point of a review of the constitutional court’s “contribution to social reform”. Instead, we are promised yet another document that will be released “soon”, setting out clear terms of reference. So what is going on in this cat-and-mouse game?

It is interesting that the tone and content of the discussion document is a radical departure from the terse criticism of the judiciary we have become used to hearing from other senior leaders of the ruling party.

ANC secretary general Gwede Mantashe previously argued that “the judiciary is actually consolidating opposition to government” and advocate Ngoako Ramatlhodi asserted that the constitutional framework reflected “a compromise tilted heavily in favour of forces against change”.

President Jacob Zuma himself has ambiguously stated: “The powers conferred on the courts cannot be regarded as superior to the powers resulting from a mandate given by the people in a popular vote”—a quote that is innocuously trite on a simple, literal reading and ominously loaded on an alternative reading.

Radebe, however, sang the praises of the Constitutional Court this week and explained the content and significance of the principle of constitutional supremacy, including its central operational mechanism: judicial review. Why this sudden change?

It might be that good arguments in the public space, including excellent recent public lectures on different but related aspects of constitutionalism, delivered by retired justice Kate O’Regan, advocate Geoff Budlender and former chief justice Arthur Chaskalson, have been heard inside government and the ruling party.

It just might be the case that cogent argument had a “chilling effect”—or sheer reasoned influence—on government thinking. This would be a useful demonstration of the potential influence of public debate on government action, even in a country where one party dominates.

That is the optimistic view. The less optimistic possibility is that the government simply does not have the guts to own up to a desire to actually rethink the scope of the judicial powers vested in the Constitutional Court.

We have to wait for the terms of reference of the review and see what the government does with the results of the review before we can say with certainty what the intentions were all along. It remains a game of speculation until then. The speculation will not be helped by Radebe’s selective reference to O’Regan’s 2011 Helen Suzman Memorial Lecture, in which she noted that, because of the complexity of policymaking and the limited research capacity of the courts, “courts [therefore] need to be modest about the judicial role in addressing the legacy of our history”.

What the minister did not say, of course, is that the central theme throughout O’Regan’s lecture was that our chosen model of constitutional democracy requires of us to develop what constitutional expert Etienne Mureinik famously called a “culture of justification”.

The central change from parliamentary sovereignty to constitutional supremacy—which the minister reassures us he loves dearly—is that government is accountable to the people and the Constitutional Court is one mechanism through which that accountability is enforced.

By advising judicial modesty, O’Regan certainly did not mean to imply that the executive’s conduct should be beyond judicial review for legality, rationality and consistency with the Bill of Rights.

Nothing in the review of the Constitutional Court’s role should erode this basic foundational feature of constitutional supremacy, or erode the power of the Constitutional Court to safeguard these elements of constitutionalism.

Instead, the review should examine a cluster of questions such as the following non-exhaustive thought-starters: Is the principle of legality applied more broadly in case law than the constitutional text posits? Have the socioeconomic rights enshrined in the Bill of Rights been adequately developed in the jurisprudence? Should the “minimum core” model of socioeconomic rights be reconsidered, or is “progressive realisation” still a preferable framework? What is the level of compliance with the court’s decisions? How can compliance levels improve? Has the court made regular enough use of remedies that demand public participation in the restoration of rights that were violated, thus entrenching participatory democracy? Can greater and more direct public access to the court be achieved? Or is that undesirable?

Neither civil-society organisations nor ruling-party hacks should adopt hardened attitudes in this debate. Democracy is not at stake. It is perfectly acceptable to reflect on the role of the court and the output it produces. But open and honest engagement is critical.

Furthermore, we must not lose sight of the fact that the ultimate aim is to strengthen the court to best perform its role in helping society achieve substantive equality and social justice more broadly.

The aim is not a turf war between branches of government. It is about giving power to the people and figuring out how that slogan translates in a complex, modern, constitutional democracy.

Eusebius McKaiser is an associate at the Wits Centre for Ethics. Follow him on twitter @eusebius.

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