In the brouhaha about the Ministry of Justice’s amendments to the power of the judiciary is one clause that has all but been ignored.
Currently, the position is that ”the Constitutional Court … is the highest court in all constitutional matters”. If, as is expected, the Fourteenth Amendment to the Constitution is passed later this year, the words ”in all constitutional matters” will be deleted.
The Constitutional Court will, in short, no longer be a constitutional court. Instead it will occupy the apex of the judicial system, as the final court in the republic in all matters of law.
Why has this proposed amendment attracted so little controversy? It is because it does not represent a change to the status quo, but is simply a recognition of the point that our constitutional jurisprudence has reached.
The concept of a specialist court, confined to deciding ”constitutional matters”, relies on a distinction between such matters and what we can call ”ordinary” matters — legal disputes that do not involve constitutional questions. But, the Constitutional Court has presided over the abolition of this distinction. The point has now been reached that the Constitution can no longer sensibly differentiate between constitutional and other matters.
Twelve years ago, things were different. In a retirement speech, delivered in 2005, former chief justice Arthur Chaskalson reflected on his first days in office in 1994. Despite its grand name, the Constitutional Court of South Africa had, Chaskalson recalled, ”no judges, no jurisprudence, no building, and no traditions. It existed only on paper.” That paper was the 1994 Interim Constitution, a document that recognised a principle that was nothing short of revolutionary. It was the principle of constitutional supremacy. In the post-apartheid democracy, state power would be delineated and limited by a supreme Constitution and these limitations would be enforced by the judiciary.
From the point of view of constitutional theory the interim Constitution took a conventional approach to its task. As its drafters saw it, the primary problem to be addressed by the Constitution was to parcel out and restrain state power. In recognition of this, the new Constitutional Court (positioned rather awkwardly in the existing hierarchy of courts at the same level as the then Appellate Division) was envisaged as a court of specialist and exceptional jurisdiction. Its principal business would be to declare laws and conduct of the state to be in violation of the Constitution. It would also have an unprecedented role in the process of the drafting of the interim Constitution’s successor.
The Constitutional Court was required to certify the draft of the ”final” Constitution as compliant with the blueprint contained in the 34 constitutional principles negotiated at Kempton Park and binding on the Constitutional Assembly elected in 1994.
It is a measure of the success with which the new court performed these duties that the 1996 Constitution not only retained the principle of judicial review but greatly expanded it. By contrast with its predecessor, the 1996 Constitution was based on a remarkable new conception of the role of the Constitution (and with it, the role of the courts) in the polity.
The purpose of the 1996 Constitution can be summed up in a slogan — it is a transformative Constitution. Rather than limiting state power, it aims at directing and channelling it towards achieving an ambitious set of goals: a democratic state, based on social justice and fundamental human rights. This process of transformation cannot focus only on state power. Law (both public and private) and the courts that interpret and enforce the law are equally part of this project. In a series of seminal decisions following the adoption of the new constitutional text, the Constitutional Court set out the implications of this new conception of constitutionalism.
The Constitution, the court held in its 2001 decision in the Carmichele case, creates a set of values informing every instance of law-making by the legislatures and of the implementation of the laws by the state and interpretation of the law by the courts. Such a system cannot accommodate a distinction between constitutional matters and other matters. All law is constitutional law. Whatever the demerits of its tinkering with other aspects of the judicial system, the proposed Fourteenth Amendment recognises this. It entrenches the principle that constitutional adjudication is not exceptional but routine.
For the Constitutional Court to occupy the apex of the South African legal system with little controversy about its appropriateness to do so is a measure of the extent to which the court has become an established and respected feature of the South African political landscape.