The counter-majoritarian debate: the executive can not do as it pleases
A television talk show debate, especially one involving two politicians, is not the ideal half hour in which to explore counter-majoritarianism. For those left disappointed, irritated or perplexed by the latest content of "Judge for Yourself", a little more light and a little less heat seems to be indicated.The counter-majoritarianism debate has been rekindled by remarks made by President Zuma when he opened the Access to Justice Conference recently. A good starting point is to set out the offending statements he uttered:
"The Executive, as elected officials, has the sole discretion to decide policies for the Government. This means that once government has decided on the appropriate policies, the judiciary cannot, when striking down legislation or parts thereof on the basis of illegality, raise that as an opportunity to change the policies as determined by the Executive area of government.
The Executive must be allowed to conduct its administration and policy making work as freely as it possibly can.
The powers conferred on the courts cannot be superior to the powers resulting from the political and consequently administrative mandate resulting from popular democratic elections."
What is clearly implied in these statements is that those who are victorious in popular democratic elections can, by reason of that popularity, do as they please in the formulation of policy, and woe betide any court that thinks otherwise.
This sentiment is expressly contradicted by the provisions of the Constitution, our supreme law. Firstly, it entrenches the rule of law as foundational to our new order, and secondly, it provides that "law or conduct that is inconsistent with it is invalid".
While the President seems to concede that the courts can strike down law that is inconsistent with the Constitution, he baulks at policy being second guessed. However, policy is no more than "conduct" and any conduct that does not pass constitutional muster must, upon being challenged, be struck down as invalid. This has happened repeatedly in our courts, thus far without demur from those in the executive.
The importance of the rule of law needs to be stressed. The World Justice Project, which has devised a Rule of Law Index, defines the rule of law in terms that make it clear that policy formulation is constrained by a variety of considerations that limit what a duly elected executive, functioning under the constraints of the rule of law, can do in its formulation of policy. A popular vote is not necessarily decisive nor does it allow the executive carte blanche.
Take, for example, the death penalty. It is prohibited in the new South Africa despite its popularity among voters. The Constitutional Court struck down apartheid era capital punishment law for its inconsistency with the rights to life and dignity which are guaranteed in the Bill of Rights. No laws from the legislature and no policy of the executive have sought to challenge the striking down of the use of the noose. The court examined the practice and found it inconsistent with the Constitution. It had to go, despite its popularity among the overwhelming majority of the citizenry. The only way in which it could be re-introduced would be to change the Constitution to allow it, and a special majority in parliament would be needed to achieve that.
There are, according to the World Justice Project, four universal principles which inform the rule of law. They are:
- The government and its officials and agents are accountable under the law
- The laws are clear, publicized, stable, and fair, and protect fundamental rights, including the security of persons and property.
- The process by which the laws are enacted, administered, and enforced is accessible, fair and efficient.
- Access to justice is provided by competent, independent and ethical adjudicators, attorneys or representatives, and judicial officers who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.
This is not complex jurisprudence: the way things work is that the Constitution is the supreme law of the land. If anyone complains that a law or a policy or indeed any conduct is unconstitutional, then it is the duty of the courts to determine whether or not there is merit in the complaint. The courts are subject only to the law and the Constitution, which they must apply impartially and without fear, favour or prejudice. Moreover, the orders and decisions of courts are binding (subject to appeal) on all persons and organs of state to which they apply.
In effect this means that the Constitution means what the courts, and in particular the Constitutional Court, which is our highest court on constitutional matters, say it means and everyone, including the President, is obliged to respect this.
The courts do not purport to create policy. That is the function of the executive. Those aspects of policy that require the force of law are the business of the legislature, which passes laws on all manner of matters. If any court were to attempt to create policy, an appeal is available to the Constitutional Court to rectify so basic an error. The Constitutional Court itself, notwithstanding the many landmark decisions it has made, has never purported to make policy. Its decisions may prompt a change of policy, one needed to bring the situation into equilibrium with our constitutional values, but that is quite a different matter to the judicial policy making about which the President appears to complain.
The recent Glenister decision affords a good illustration of this: the Constitution, so the court held, unequivocally obliges South Africa to establish an anti-corruption entity with the necessary independence. The form and structure of the entity in question lies within the reasonable powers of the state, provided that the entity chosen is in a form and structure that endow it with sufficient independence. What is needed is a body outside of executive control that is able to deal effectively with corruption. As the Hawks do not measure up to these constitutional criteria, the legislation creating them was struck down as unconstitutional with effect from September 2012.
The executive and legislature have a number of options, none of which have been prescribed by the court. They could try to make the Hawks sufficiently independent, they could revert to the former position in which the Scorpions fulfilled the functions in question, they could form an all new Anti-Corruption Commission or they could expand the powers of the Public Protector to include investigation and prosecution of corruption. They may even come up with a further novel, but constitutionally compliant, plan of their own.
It does not behove the President to suggest that our courts are taking over executive policy making powers when they are not, nor should he suggest that a majority of support in elections will entitle any executive to do as it pleases. We are all constrained by the Constitution, and we are all better off for this - the supremacy of the Constitution is one of the finest features, and saving graces, of the new South Africa.
Paul Hoffman SC
16th August 2011
