Increasing judicial acquiescence is as much of a threat to the Constitution as legal transformation is.
As the dust settles on the controversy caused by President Jacob Zuma’s call for a review of the powers of the Constitutional Court it becomes possible to make a better assessment of the threats to the court’s jurisdiction.
The recent publication by the department of justice of a discussion document concerning the transformation of the legal system, with a lengthy press release, may be regarded as a retreat from the obvious import of the president’s call to curtail the powers of the court.
We are now told that the review is designed to examine the powers of constitutional review in the context of increasing the pace of social and economic transformation and has nothing to do with a circumscription of judicial review.
It is possible that what seems to be at least a tactical retreat on this issue was compelled by a combination of the fraction of government that desires increased foreign investment — jeopardised if the independence of the judiciary is gutted — and vigorous reaction from civil ¬society, including trade federation Cosatu, to the potential threat to the courts.
But the threat to the Constitution itself is still alive and well. Thanks to the moves of the president and other senior members of the ANC, public conversation has shifted from holding government at all levels to account for a lack of significant social and economic change to blaming the Constitution. Listen to talk radio, for example, and the view is increasingly expressed that without the Constitution a greater equity of wealth distribution, improved education for the poor and a more effective land-reform policy would all have been achieved.
Those closer to power reinforce this message when they refer to the problems of the present property protections of section 25 of the Constitution, which, they claim , entrench a “willing buyer, willing seller” principle of compensation when land is expropriated. It is argued that the government cannot afford to expropriate and in this way the Constitution prevents an effective land reform policy from being implemented.
The problem is that the Constitution says nothing of the kind. Section 25(3) refers expressly to compensation that is “just and equitable” being “an equitable balance between the public interest and the interests of those affected”.
The formulation of this clause represented a compromise, but not one in which landowners could demand a market-value amount of compensation. On the contrary, specific considerations of the history of the acquisition of the land in question and the purpose of the expropriation mean that compensation far below market value is justified in many cases. Thus, it is not the constitutional clause, but poor conception and implementation of land reform, which is a reason for the continued inequity in land holdings. Yet,for obvious reasons, it is politically less expensive to blame the Constitution.
To date, no one who has argued in favour of constitutional change has answered this argument. Nor have they shown cases in which the Constitutional Court has subverted the process of the government’s delivery of social and economic transformation in terms of education, health, evictions from property, or the provision of other basic goods and services.
Published ANC discussion documents do not, so far, contain express threats to constitutional democracy. But a combination of the Constitutional Court’s record and the express provisions of the constitutional text are being presented as key reasons for the lack of significant change in the lives of millions. This will ease the path to significant constitutional change.
Here is where the real threat is to be found. In such a climate, the judiciary will experience greater pressure, both from the political discourse and the likelihood that deference to the executive will be the key to judicial appointment and promotion.
Hence judicial acquiescence may well produce the results the ANC seeks without the need for as -dramatic a set of constitutional changes as some have predicted.
In the meantime, the judiciary has hardly done the constitutional enterprise any favours. For the second time in a month, only two judges have allowed themselves to be nominated for the vacant position on the Constitutional Court. Because the Judicial Service Commission (JSC) must present the president with a slate of four candidates from whom to choose, an appointment cannot now be made.
Less than three years ago more than 20 candidates were shortlisted for the four places on the court, including a number of outstanding lawyers who, having been ¬overlooked, have not come forward again. Why? A number of reasons commend consideration. The last time, the JSC took less than 30 minutes, after three days of interviews, to announce its recommendations. It appeared that the interviews were hardly to be taken seriously and that the recommendations were a foregone conclusion.
In addition, the appointment of Judge Ray Zondo as an acting member of the court, for a fairly long period, is regarded as a clear indication of Chief Justice Mogoeng Mogoeng’s preference.
To be fair, Zondo would make a significant contribution to the court, but other worthy candidates may now have decided not to subject themselves to the public exposure of a tough JSC interview.
Whatever the reasons, it is disturbing that there are not even four jurists willing to make themselves available for appointment to the highest court in the country.
Self-censorship by worthy candidates at this fraught time only compounds the threat to the development of constitutional democracy.