a second look
Christina Murray
A proposed constitutional amendment would change the tenure of Constitutional Court judges from a fixed 12 years to a term established by legislation. This would place Constitutional Court judges on a par with other judges and extend the tenure of the existing judges in one case from 12 to 32 years.
Until the Mail & Guardian editorial of August 17, few reasons had been given for the amendment. But the reason explored most thoroughly in your editorial is the worst possible one for amending a constitution.
The amendment, you say, ”allows those that are there to hang around longer” and ”would do the country an immense service by ensuring that Judge Arthur Chaskalson himself remains in place for a while longer”.
You emphasise the role that Judge Chaskalson, the court’s president, has played in building its success. Certainly, the South African Constitutional Court is well respected and established its reputation remarkably quickly. Justice Chaskalson, himself a remarkable man, has contributed significantly to this reputation. But the personality of incumbents of positions can never be a good reason to amend a Constitution. And it does an injustice to Judge Chaskalson to suggest that the amendment which you attribute to him is designed primarily to extend his tenure.
So, what reasons are there and do they justify revisiting decisions made after considerable debate by the Constitutional Assembly in 1996?
Your editorial suggests another reason: longer tenure ”could strengthen the court and entrench the continuity that is essential to the development of sound constitutional jurisprudence. It takes time for an 11-judge court to settle down and develop its philosophy. The current rules effectively mean clearing out the court after 12 years.”
But there have already been two new appointments to the court and, under the current system, changes occur gradually as judges reach the retirement age of 70 and are replaced or as they reach the end of the 12-year term.
Your suggestion that more time is needed for the court to ”settle down and develop its philosophy” is more complex. How does a court establish a philosophy? Through developing an understanding of the law that the country comes to share; through the give and take of discussion among the judges.
A court is not a monolithic body as the many dissenting judgements in the short life of our Constitutional Court demonstrate. A court’s philosophy is moulded by differing views of the law and by cases that come to it.
Moreover, new judges do not come on to the bench ”cold” but with an understanding of the philosophy of the court, ready to develop (or challenge) it. Already the court draws on new judges regularly. There is almost always an acting justice on the court and acting justices usually write a judgement during their tenure without, one assumes, undermining the developing constitutional philosophy. Certainly, new judges may take some time to adapt but there are 10 other judges holding the reins.
Through constant challenges to its philosophy from its members, a court remains alert to needs and new ideas. The gradual replacement of judges provides continuity; their regular replacement prevents stagnation.
There is one better reason for extending tenure, but even this reason is dubious. It is generally thought that longer tenure increases the independence of judges.
It has been argued that younger members of the court who complete their terms far from the end of their working life might have their independence impaired because they will search for new jobs as their term draws to an end. But, again, this argument does a disservice to the judges on the court.
And the present arrangement of paying a gratuity to judges at the end of their tenure ensures that none will suffer while choosing a new occupation.
Moreover, the argument based on judicial independence must be carefully weighed against other constitutional principles. The major argument for a fixed term for the Constitutional Court is based on the power wielded by the court, a power that is markedly different from that of other judges: the Constitutional Court can overturn an Act of Parliament but only an amendment to the Constitution can overturn a decision of the Constitutional Court.
The tension in democracies between decision-making by a majority and the need for an umpire (like a Constitutional Court) to protect basic values is always difficult to manage.
In modern democracies a common part of the solution is to establish a court with supreme decision-making power but also to limit its tenure so that its decisions are constantly reopened for scrutiny. Why should this constitutional concern give way to a concern about independence that can be resolved in many other ways (as the successful fixed-term courts in Europe show us)?
There is yet another, less commonly expressed reason for limiting tenure. It is the need to have judges on the Constitutional Court who are closely attuned to community needs.
The Judicial Service Commission, which helps select Constitutional Court judges, is aware of this. It asks: ”What experience does the candidate have in regard to the values and needs of the community?” This captures a notion that is part of our commitment to a representative Bench: rendering justice requires more than legal technique and technical knowledge. Judges breathe life into the law and in doing so they must make judgements about its purpose and the communities it serves.
The entire proposal smacks of an attempt to fix something that ain’t broke or, at best, to respond to short-term political concerns by a constitutional amendment that will long outlast the problem. The current government may like the idea of giving this court more power. Its political successors may not be as sanguine about the change.
Christina Murray is professor of constitutional law at the University of Cape Town