A 75% majority needed to amend powers of Constitutional Court?

The statement by President Jacob Zuma about the need to “review” the powers of the Constitutional Court has elicited much comment. The Black Lawyers Association (BLA) has issued a welcome statement in which it argued – as I did earlier this week – that an amendment of the powers of the Constitutional Court would mean that we would be abolishing the current constitutional democracy “and remarry the parliamentary sovereignty”. On reflection, I suspect that I was wrong and that the powers of the Constitutional Court can be amended in such a way that we would not return to a system of parliamentary sovereignty, but which would return us to a system in which the supremacy of the Constitution as well as the Rule of Law is not upheld.

Let me explain.

The BLA correctly points out that such an amendment would be unlikely to hold water as it might require a 75% majority of members in the National Assembly to vote for it. The ANC at the moment has 65.9% of the seats in the National Assembly (3 seats short of a two-thirds majority)and the DA, Cope and the IFP (who would presumably all be opposed to such an amendment) holds 28.5% of the seats in the National Assembly. This means that the ANC will not be able to garner the necessary 75% majority to validly change this aspect of the Constitution.

This argument might, at first, seem strange as the powers of the Constitutional Court are contained in chapter 8 of the Constitution and the provisions in this chapter can be amended by a two thirds majority of members of the National Assembly (and six of the nine delegations in the National Council of Provinces). Section 165(5) states that “an order or decision issued by a court binds all persons to whom and organs of state to which it applies”, based on the assumption that an order or decision is made by the majority of judges sitting in a case.

Section 167 of the Constitution sets out the powers of the Constitutional Court, confirming that the Constitutional Court is the highest court in all constitutional matters; that it may decide only constitutional matters, and issues connected with decisions on constitutional matters; and that it makes the final decision whether a matter is a constitutional matter or whether an issue is connected with a decision on a constitutional matter.

Section 167(4) states that only the Constitutional Court may decide disputes between organs of state in the national or provincial sphere concerning the constitutional status, powers or functions of any of those organs of state; and may decide on the constitutionality of any parliamentary or provincial Bill referred to it by the President or Premier or Acts referred to it by 30% of the members of a legislature. That Court also has exclusive jurisdiction to decide on the constitutionality of any amendment to the Constitution; and to decide that Parliament or the President has failed to fulfil a constitutional obligation.

The pivotal section is probably section 167(5) of the Constitution, which states that:

The Constitutional Court makes the final decision whether an Act of Parliament, a provincial Act or conduct of the President is constitutional, and must confirm any order of invalidity made by the Supreme Court of Appeal, a High Court, or a court of similar status, before that order has any force.

How could these powers be amended? One possibility is that the Constitution could be amended to remove the power of the Constitutional Court (as well as other courts) to review acts of the President and/or other members of the executive. This would mean that the Constitutional Court would retain the power to declare invalid acts of various legislatures but that it would not be allowed to inquire into whether the President or perhaps other members of the executive have infringed the rights of anyone or have acted in breach of their constitutional or other legal duties.

This would not make Parliament supreme again, but two other very serious and deeply problematic consequences would inevitably flow from such a possible amendment.

First, the executive would become more powerful and we would move in the direction of creating an imperial Presidency (much like the imperial Presidency created by the 1983 tricameral Parliament under PW Botha). This is because, in controversial matters, the majority party in Parliament will try to circumvent judicial review by the courts by delegating more and more power to the President and/or his executive. Although our courts have argued that unlimited delegation of powers by the legislature to the executive is not allowed as it infringes on the separation of powers (hence the declaration of invalidity of the provision on which the President relied to try and extend the term of office of the former Chief Justice), the Parliament would obviously delegate as much power as it legally can to the President.

As the President is not democratically elected (but elected by the National Assembly, which in effect means at the moment that it is elected by just over 4000 delegates at the ANC elective conference), such a move has the possibility of eroding the democratic nature of our system of government.

Second, the President would no longer be subject to the Constitution and the law and would, in effect, be above the law. If the President failed to exercise his powers as dictated by the Constitution or other legislation (as he was found to have done in the Menzi Simelane case) or if he acts in a way that infringes on the rights of others, his actions would not be reviewable and the President would then potentially become a law unto himself.

This would result in an indirect amendment of section 1(c) of the Constitution, which states that our democracy is founded, inter alia, on the value of the supremacy of the constitution and the rule of law. There will no longer be a supreme Constitution and neither will there be full respect for the Rule of Law. Even if section 1(c) of the Constitution is not itself amended, such an amendment to section 167 would result in an effective scrapping of section 1(c). This would, I contend, require a 75% majority in the National Assembly.

If Parliament amended section 167 in this way but relied on a two-thirds majority in the National Assembly in terms of the section 74(3) process, the Constitutional Court would be able to review this amendment and would be able to declare it invalid on the ground that the amendment should have been passed in terms of the section 74(1) process which requires a 75% majority in the National Assembly.

What the Constitutional Court would almost certainly not be able to do is to review an amendment on grounds not related to the question of whether the correct procedure (as prescribed in section 74) was used when the Constitution was amended. Some commentators seem to have suggested that the Constitutional Court can declare invalid a constitutional amendment because it clashes with other provisions in the Constitution. This is not correct. In the floor crossing case the Constitutional Court made this clear when it found that:

Amendments passed in accordance with the requirements of section 74 of the Constitution become part of the Constitution. Once part of the Constitution, they cannot be challenged on the grounds of inconsistency with other provisions of the Constitution. The Constitution, as amended, must be read as a whole and its provisions must be interpreted in harmony with one another. It follows that there is little if any scope for challenging the constitutionality of amendments that are passed in accordance with the prescribed procedures and majorities.

The curious part of this statement is that the part where the Court stated that there is “little if any” scope for such a review. This phrase probably gestures at the obiter dictum (not binding opinion) by Justice Mahomed in the Premier, KwaZulu-Natal v President of the RSA judgment, in which he raised the possibility that amending the basic structure of the Constitution would itself not be permissible. In that case he stated that:

It may perhaps be that a purported amendment to the Constitution, following the formal procedures prescribed by the Constitution, but radically and fundamentally restructuring and re-organizing the fundamental premises of the Constitution, might not qualify as an “amendment” at all.

But this statement was made with reference to the Interim Constitution, which did not contain a super-entrenched founding values section similar to section 1 in the 1996 Constitution. I would think that our Constitutional Court would argue that an amendment of the provisions of section 167 which would remove some powers from the Constitutional Court would amend the “basic structure” of the Constitution, but that the essence of this “basic structure” is contained in section 1 of the Constitution and therefore requires a 75% majority in the National Assembly.

The consequence of this is that the ANC dominated Parliament will not be able validly to amend the Constitution to radically reduce the powers of the Constitutional Court. If it did, the Constitutional Court will declare that amendment invalid. What would happen after that is, of course, anyone’s guess.

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