Power of constitutional review is real issue behind attack on judiciary

Over the past few years there has been a sustained attack on the judiciary, with critics ranging from President Jacob Zuma to members of his Cabinet and the secretary general of the ANC, Gwede Mantashe.

Whereas these attacks have met with many responses, including from some judges, sitting and retired, there has, to date, been little reaction from the leadership of the judiciary. Last week, retired chief justice Arthur Chaskalson stepped into the breach and mounted an unanswerable defence against suggestions that the judiciary was an obstacle to transformation.

Chaskalson first addressed the complaint that judicial power was still held by those who possessed it under apartheid. As he compellingly showed, that charge cannot be justified and most certainly not against the members of the Constitutional Court, nor against the judges who head South Africa’s high courts. All were appointed under the present Constitution.

Only three judges sit on the Judicial Service Commission (JSC), which appoints judges, whereas 15 members are nominees of Parliament or the executive. Hence, it cannot be argued that judicial appointments are made by the judiciary itself. On the contrary, the ruling party, through its own members who sit on the JSC and the four appointed by the president, commands a near majority.

Thus the composition of the present judiciary is, to a considerable extent, the responsibility of the ANC, which, in turn, makes the claim that it perpetuates a form of apartheid even less sustainable.

Chaskalson then dealt with a second critique: that judges are out of tune with the Constitution. After engaging in a review of key judgments of the Constitutional Court, he concluded: “The constitutional commitment to transformation has been a consistent theme in the jurisprudence of the Constitutional Court — Most recently the Constitutional Court again drew attention to the centrality of the constitutional commitment to social justice, to the fact that millions of people were still compelled to live without adequate housing” and to the concern that “17 years into our democracy, a dignified existence for all in South Africa has not been achieved”. This “lack of transformation of the day-to-day lives of marginalised communities commented on by the court has not been due to decisions of the courts”.

If the composition of the present judiciary has been fashioned by a body in which the ruling party has the most say and, further, the record of the courts has been directed mainly towards the implementation of the constitutional vision, it follows that the reasons for the attacks must be found elsewhere.

Chaskalson suggests that the critics’ real gripe is the Constitution itself and the idea that the powers of Parliament and the executive are to be exercised within the framework of the Constitution. If so, he argues, they should say so expressly so that the nation can then debate the real motivation for what Chaskalson correctly describes as demeaning attacks on the judiciary.

In 1934, in the case of Sachs v Minister of Justice, the then chief justice, James Stratford, said there was “a plain principle that Parliament may make any encroachment it chooses upon the life, liberty or property of any individual subject to its sway and that it is the function of courts of law to enforce its will”.

In 1994 South Africa chose to move away from this system of government. The courts were empowered to ensure that the government made decisions compatible with the Constitution.

Thus, as Chaskalson says, if the government decided to allocate homes in a social housing project only to supporters of the ruling party, or only to employ men as teachers, the courts would be compelled to uphold a challenge based upon the Constitution, no matter what the government might say about its right to frame and implement policy.

If the critics of the present judiciary prefer the model of government as set out in Sachs v Minister of Justice, it is high time they introduced honesty into the debate and informed the country that they believe constitutional democracy is unsuitable for South Africa.

Were the criticism simply about judicial performance in individual cases, or about the need for greater deference to the executive in judgments, that would be the stuff of democratic debate. But Chaskalson exposes the real basis of these attacks: a profound disagreement with the very power of constitutional review.

The bad news is that the attacks may well increase. Take the challenge to the National Prosecuting Authority’s decision to drop charges against Zuma, which is about to be heard in the Supreme Court of Appeal. Soon, the present debate may seem measured in comparison.

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