The proposed constitutional amendment to the length of the terms of Constitutional Court judges is likely to prove the most controversial of the changes contained in the Constitutional Amendment Bill, read with the Superior Courts Bill.
The amendment, if passed, will grant life tenure to members of the Constitutional Court and thus place them in the same position as all other judges who stay on the bench until they reach age 70 years old. So why the potential controversy? The answer needs a short historical review.
When the Constitutional Court (CC) was initially created under the 1993 Interim Constitution, the judges were to be appointed for a single, non-renewable term of seven years. In 2001, the term of CC judges was extended to a non-renewable term of 12 years or until he or she attained the age of 70 but, if a judge’s term expired before the judge had served 15 years on the bench, then such judge could continue to sit until he or she had served 15 years. In effect, because most sitting judges who are elevated to the CC would have sat on the bench for three years before appointment, the 15-year rule generally applied to those who had not been judges before being appointed to the CC, including Judges Kate O’Regan, Yvonne Mokgoro, Albie Sachs and Zac Yacoob.
The initial idea behind the fixed non-renewable term had its source in the precedent of European constitutional courts, where the view was taken that a court that is empowered to trump the legislature or executive has immense power. Hence it is advisable that the composition of such a court should be subject to clearly defined periods of change to prevent one group of judges, in effect, from ruling the country, at least in part, for decades.
In this connection, the model of the United States Supreme Court loomed large as the very antithesis of the desired model. There, judges can sit on the court for 30 years and more, subverting legislation by way of constitutional interpretation that no longer has any place in the society as it has evolved.
Concern about the potential power of the CC prompted about 55 judges to agree with a memorandum signed by the Judge President of Gauteng that objected to the 2001 amendment, in which it was asked rhetorically ‘whether anybody who wields such political power and moral authority with the final say should hold office for life”.
It is likely that the current amendment, which is far more drastic, will prompt even more opposition.
Where lie the merits? In favour of the amendment is the additional proposal, which has been discussed in this column, that the CC will become the apex court for all legal disputes, not only constitutional matters. Thus, contrary to the court structure introduced in 1994, the CC will become fully integrated into the country’s judicial system, as the principle that the Supreme Court of Appeal has the final jurisdiction for non-constitutional matters is finally put to bed. It is argued that under this new system all judges should be treated equally with regard to terms of service.
Further, if a judge only has a limited term and retires at a relatively young age (some of the CC judges who recently retired are in their early 50s), there is a temptation to comport one’s judicial behavior to ensure government support, for example, for high international office following departure from the bench.
In addition, doctrines of legal precedent may well influence continuity and certainty of decision more than individual hubris. Finally, under a constitutional system in which most litigants have neither the resources nor the capacity to litigate to CC finality, all courts wield great power.
The criticisms of the proposal can be summarised thus:
The Constitution is a national compact that should only be amended with compelling justification. The present system of tenure did not produce any disturbing jurisprudence that could be traced to explicit considerations for future career ambitions; to the contrary, the judges appointed to date have done the jurisprudence proud with their fierce independence. Given the likelihood that most elevations to the CC will occur only after the judge reaches 50, in that it is desirable that a judge so appointed has sufficient experience on the bench, most who retire will be at least 60-65, in which case they will be in a similar position to ‘normal mortals”.
But most important is the consideration that the CC is an apex court with, at the very least, the potential power to alter much of the sociopolitical landscape of the country. It is surely preferable not to have judges performing this task for decades. It is equally desirable to ensure that the composition of the court and, with it, its jurisprudence, do not ossify with precedent that is palpably wrong but persists because the same bench refuses to overrule itself.
On balance, there may be arguments, but not overwhelmingly persuasive ones, to justify so major a change to the model that was agreed at the Constitutional Assembly. On a more immediate issue, the amendment will mean that the country’s judiciary will be led by Chief Justice Sandile Ngcobo for the next 12 years, which will end the chances of Deputy Chief Justice Dikgang Moseneke. For some, that consideration may tilt the balance of the argument.