Defusing a looming constitutional crisis
Defusing a looming constitutional crisis The Constitutional Court sits at the crossroads between the law and politics. This is a busy intersection, one in which there is a heavy flow of traffic from all directions. It is potentially dangerous, if not lethal, to be in the middle of the intersection in any circumstances in which the traffic is not properly controlled.The judiciary is the weakest and smallest branch of government. However, because its function in politics is to act as a checking and balancing force against the possible excesses of other branches of government or of civil society in general, it plays a crucial role in safely "directing the traffic" in our constitutional multi-party democracy under the rule of law.
In the old South Africa there was no Constitutional Court. The system was a race based parliamentary sovereignty, in which parliament was supreme. Now, thankfully, we have a constitutional democracy for all and our parliament is no longer supreme. The Constitution is supreme and parliament, along with the rest of the populace, is constrained by the provisions of the Constitution, our supreme law. Any legislation or conduct which is inconsistent with the Constitution is invalid and can, on application, be struck down as such by the Constitutional Court.
The announcement that the President has decided to extend the term of office of the Chief Justice, by a period of five years, has sparked a controversy that could snowball into a constitutional crisis that will be damaging to the fabric of South African society and to a peaceful, progressive and prosperous future.
Those critical of the decision point to the provision in the Constitution that expressly requires an Act of Parliament to extend the term of office of a Constitutional Court judge.
Those who defend the decision draw attention to a law which gives the President the power to extend the term of office of the Chief Justice.
The Chief Justice is manifestly a Constitutional Court judge. Both provisions can not be right, as they are obviously and fundamentally contradictory. Which should prevail? Under section 2 of the Constitution, laws which are inconsistent with its provisions are invalid. Accordingly, the power of Parliament to extend trumps the purported power of the President to do so.
This is not rocket science. But, if the President and the Chief Justice stick to their guns and insist that the President does have the necessary authority to extend, a bruising round of litigation, initiated by the Centre for Applied Legal Studies (CALS) and the Council for the Advancement of the Constitution (CASAC), will follow in which the Chief Justice (for accepting) and President (for appointing) will be respondents and in which the Deputy Chief Justice and the other nine members of the Constitutional Court will have to do their duty and exercise their, probably exclusive, jurisdiction to determine the issue of whether or not the President does have the power to extend the term of office of the Chief Justice. This is an invidious prospect, one in which more heat than light is likely to be generated.
It is accordingly refreshingly welcome to note a press release of the ANC, emanating from the office of its Chief Whip in Parliament, in which the ANC "cautions all South Africans not to politicise the issue as doing so will undermine the integrity of Judge Ngcobo and the important office he occupies."
The ANC also suggests that if the laws are "not sufficiently clear" remedial legislation could be passed.
The "issue" is one concerning the powers of appointment in respect of the Chief Justice, in particular, and the judiciary, in general. There are complex provisions in the Constitution dealing with this topic and a dedicated organ of state, the Judicial Service Commission, which is seized with matters concerning the appointment and disciplining of judges.
If it is now incipient ANC policy to depoliticise the appointment of judges, this is a most welcome development that ought to translate into the reform of the Judicial Service Commission and the streamlining of the appointments process. Reform that will see the excessive number of politicians and political appointees who serve on that commission replaced by better qualified persons with appropriate legal skills, training and experience who can make uncontroversial, merit-based, appointments to the judiciary. Retired judges and appointees of civil society, trade union and faith based organisations, with the necessary attributes for the important task at hand, will surely do a better job in a depoliticised environment than the fistful at present being perpetrated by the JSC and the President in their respective efforts to populate the Bench.
Having regard to the watchdog nature of the Courts, the basic elements of independence and impartiality of the judiciary are best cultivated by an open, transparent and accountable appointments procedure which is depoliticised, as the ANC now suggests.
This is a major departure from the established practices and procedures which is to be welcomed by all who value the principles of constitutionalism, in particular the proper separation of powers and the necessary independence of the judiciary.
If, on the other hand, the new "depoliticised" stance of the ANC is intended to be confined to the present debacle only, then the question which arises is: why should only the extension of the appointment of the Chief Justice not be politicised? Surely, it would lead to better results and a judiciary well equipped to act without fear, favour or prejudice, if the selection and appointment procedures were to be kept out of the political arena and left to trusted experts, who are not politicians, but who are qualified to identify the most appropriate custodians of the values of the Constitution for appointment to the Bench.
The judiciary is sworn to uphold constitutionalism in all it does in the more elevated position which it occupies in our new order. This is a position in which it is answerable only to the law and the Constitution. It is a position which must necessarily be confidently occupied, if the aspirations of our constitutional state, which has been substituted for the odious apartheid parliamentary sovereignty, are to be realised. The striving of the nation for peace, progress and prosperity is encapsulated in the various rights and freedoms guaranteed in the Bill of Rights. The pursuit of human dignity, equality and freedom for all are our national goals.
If the ANC's cautioning is of a lamentably narrow nature, then the harm it seeks to avert is best avoided by the simple expedient of complying with the Constitution. This could be done by passing the necessary Act of Parliament which the Constitution requires. A failure to embark upon this sensible course will precipitate a constitutional crisis in which the integrity of the system could indeed be undermined in unforeseen ways which the system can ill afford.
A person who is implicated in the arms deals corruption, who has appointed a loyal, but allegedly bent, ANC cadre as the head of the National Prosecuting Authority, (a position which constitutionally requires independence), and who may be in the dock himself, if a decision to withdraw 783 counts of corrupt activities, is reversed on review, has purported to extend the appointment of the Chief Justice. That this occurs at a time when litigation is pending in respect of all of the matters just mentioned, is a sure recipe for a constitutional crisis. Mix in the apparent urgency with which the ANC is approaching the passing of secrecy and media control legislation that is being debated, and the recipe becomes a potent one. The problem is that the goose of our nascent democratic order will be cooked to a cinder, if the President is allowed to get away with what he has perpetrated.
This is why the ANC cautioning of all South Africans not to politicise the issue, if meant in the wide sense, is so welcome.
Paul Hoffman SC
11 June 2011.
