The announcement on February 27 by the chairperson of the portfolio committee on justice and constitutional development, Fatima Chohan, that the deadline for submissions on the draft Superior Courts Bill and the draft Constitution Fourteenth Amendment Bill is being extended to May 15 provides some much-needed breathing space.
The perception that the intention behind these Bills was sinister and that they were being deliberately rushed through Parliament, if it was ever accurate, must now give way to two more important questions: What is the proper justification for legislation of this sort? And what is the merit of the particular amendments being proposed?
In answering these questions, a distinction needs to be drawn between the legal position, which is fairly clear, and the position from the perspective of practical politics, which is less straightforward.
The legal position, as the Constitutional Court told us in the “floor-crossing” case, is that an amendment passed in accordance with the procedural requirements specified in Section 74 of the Constitution cannot be challenged on substantive grounds, with two exceptions.
The first exception relates to the situation where an amendment is passed according to the procedure for ordinary constitutional amendments laid down in Section 74(3). If it can be shown that, because of the substantive content of the amendment, the more stringent procedures required for amendments to the founding values or Bill of Rights should have been used, the Constitutional Court may invalidate it.
The second exception concerns amendments that impinge on the “basic structure” of the Constitution. In this case, it is possible, but by no means certain, that the Constitutional Court would be prepared to strike the amendment down on substantive grounds alone, whatever the procedure followed and however strong the level of support for the amendment in Parliament.
None of the objections to the Constitution Fourteenth Amendment Bill is certain of passing these legal tests. The main complaint, that the distinction drawn in the Bill between the judicial and administrative functions of courts threatens judicial independence, is not easy to translate into a knock-down legal argument.
It is true that several countries, including Canada and Australia, have created a separate institution, independent of the executive, to take responsibility for the administration and budget of courts. This is probably the best model for South Africa and the one that is most in keeping with the vision of our Constitution. But the Constitution as it stands does not prescribe this model. We accordingly need to decide on it by discussion rather than litigation.
Re-enforcing the need for discussion rather than litigation is the fact that, for the basic structure doctrine to come into play, a case will have to be made out that the amendments undermine the foundations of our Constitution. This is a very difficult legal argument to win. As bad as they are, the amendments, if enacted, will be more like unsightly gargoyles on the face of our Constitution than explosive devices planted underneath it. As advocate George Bizos has said, the amendments tear up part of our Constitution, not the whole of it.
The strongest legal argument is the argument against the proposed prohibition on courts from hearing cases dealing with the suspension of legislation that has not yet entered into force. This amendment interferes with the rule of law, one of our Constitution’s founding values, and will thus have to be passed under Section 74(1). Assuming that is done, however, the Constitutional Court’s decision in the floor-crossing case will put the amendment beyond challenge.
It follows that our concern about the Bill must be expressed in the language of practical politics. Instead of saying, “See you in court!” we must say: “Do you think these amendments are wise, all things considered?”
The wisdom of a constitutional amendment depends on whether the amendment advances our underlying constitutional project, and whether the amendment is necessary in the sense that the purpose it seeks to achieve cannot be achieved by any other means.
The problem with most of the amendments being proposed in the draft Constitution Fourteenth Amendment Bill is that they are not wise in this sense.
The distinction between the administration of courts and the exercise of the judicial function is not necessary because, however hard it may be to do so in practice, there is nothing in the Constitution that obviously prevents this distinction from being drawn in the Superior Courts Bill.
Likewise, the attempt to oust the jurisdiction of the courts from hearing cases dealing with the suspension of pending legislation is not necessary because nothing in our courts’ track record to date suggests that the possession of this power poses a threat to the government’s transformation objectives.
A clear case has yet to be made by the government as to why the amendments in the Bill to the judicial appointment process are necessary. Until this case has been made, we must assume that these amendments, too, are unwise.
The proposed amendment to the jurisdiction of the Constitutional Court is of a different sort. As Justice Carole Lewis has pointed out, the court’s own case law suggests that it is prepared to assume jurisdiction to hear a case where the interests of justice require it to do so, even where the constitutional elements of the case are of secondary importance. If so, the proposed amendment to the court’s jurisdiction would by and large confirm the status quo.
Finally, the amendments to the structure of the high courts are necessary, and indeed constitutionally, required. There is room for debate, however, about the absorption of specialised courts into the main court structure, and why it is that the government feels these courts are not achieving their intended purpose. Since the outcome of this debate might affect the decision to create an additional deputy judge president of the Supreme Court of Appeal, it would be wise to hold back this part of the draft Constitution Fourteenth Amendment Bill until this issue has been settled.
Theunis Roux is director at the South African Institute for Advanced Constitutional, Public, Human Rights and International Law