A thoughtful reader took issue with my post on floor crossing, arguing, first, that the the “argument that, so long as the legislature’s procedure is followed, any amendment [of the Constitution] may stand is excessively legalistic” and, second, that my “argument that any attempt to judge the merits of floor-crossing would be an unwarranted involvement of the Court in politics is disingenuous” because no court is above politics.

On the first point: The Constitution is the highest law of the land and in a Constitutional state like ours any law or state action and many private acts that contravene the Constitution will be declared invalid because of this clash with the higher law. For this reason it is rather difficult to change the Constitution and this can only be done in South Africa if a complicated procedure is followed and, for the most part, if at least two thirds of the members of the National Assembly and six of the nine Provincial delegations in the NCOP agree to the amendment.

But those people who made the Constitution did not make it impossible to change any part of the Constitution. I cannot see what is formalistic about insisting therefore that if the correct procedures are followed to amend the Constitution, those amendments should not be testable against other provisions in the Constitution. How can one part of the Highest law be tested against another part of that same Highest law if both parts are of the same height, so to speak?

Also, why should unelected judges be given the power to thwart the will of the people to change the Constitution as expressed by two thirds of its representatives. It would be extremely undemocratic and would fly in the face of any semblance of the separation of powers doctrine to do so. The Constitution itself give the legislature and not the Courts, the power to decide if and how they want to amend the Constitution and the Court cannot take back this power which was given to another body.

If we do not want the politicians to change the Constitution, we should not vote for them. The courts cannot protect us in every situation from our own stupidity as voters and cannot act as a super legislature – that would be rule by judges and once Judge Hlophe becomes Chief Justice you will see how quickly everyone agrees what a bad idea THAT would be!

On the second point: I chose my words very carefully when I said that the Court felt that there was a danger that it would descend into the overt political arena if it declared invalid the amendments to the Constitution.

Of course courts play a political role – both in constitutional and other cases – and I will be the last person to deny this. Courts make decisions that will have consequences for people and these decisions are based on the judges’ interpretation of the law. Texts do not interpret themselves and judges have to make choices about what kind of interpretation and hence what kind of outcome they wants. And these choices have legal and political consequences (and the two things can not really be separated in any case).

But judges are not completely unconstrained. They have to try and make decisions and must justify them in ways that will be legitimate and coherent and will not undermine their credibility and influence. For their decisions to have a semblance of legitimacy they must be more than mere party political decisions based on the beliefs of the judges – or at least the decisions must appear to be more than party political choices….

In my post I was pointing out that in the Floor Crossing case the judges felt that there was no plausible reason outside overt politics for them to intervene in the case. The “legal arguments” ran out and all that remained were arguments that in appearance and in reality would be based on specific party political type preferences – and would thus appear to be overtly political. The Judges felt that making such a choice would be bad for their credibility as a court and thus declined to declare invalid the Floor Crossing legislation.

I do not think this decision was unwise. The judges could have usurped the power of the legislature and could have declared the Floor Crossing invalid and this would have given them some cheap popularity with the chattering classes. But how would this have made them any different from Jacob Zuma or his supporters calling for that bloody machine gun? They would then also have become populists. And is that not the very reason we have a Court: to save us form the populists when it really matters….