On public opinion and the Constitutional Court

I am in the process of writing a paper on the effect of public opinion on the decisions of South Africa’s Constitutional Court. Two preliminary questions arise. First, to what extent should public opinion inform the decisions of the Constitutional Court? Second, to what extent does public opinion in fact influence the decisions of the Constitutional Court?

Clearly, public opinion cannot be said to determine the outcome of each case that comes before the Constitutional Court. If that had been the case, the Court would never have declared the death penalty unconstitutional. Neither would it have ordered Parliament to extend the same rights and status enjoyed by heterosexual married couples to same-sex  couples who wish to formalise their relationships. Neither would the Court have found in favour of the right of prisoners to vote in elections.

However, some observers argue that public opinion does sometimes play — perhaps a difficult to define — role in the decisions of the Court. In S v Jordan the majority of the Court rejected arguments that a law that criminalised sex work but left the clients unpunished, unfairly discriminated against women — despite the fact that the vast majority of sex workers are female and the vast majority of the clients of sex workers are male. Did the opposition to sex work by the vast majority of South Africans not perhaps play a role in this decision?

And what about poor Mr Prince, whose right to freedom of religion (and hence his right to smoke dagga in conformity with the tenets of his Rastafarian religion) was not vindicated by the Court despite the fact that he forms part of a vulnerable and despised minority group?

In S v Makwanyane, the first case ever heard by the Constitutional Court, all eleven judges found that the death penalty was unconstitutional. One of the arguments placed before the Court to try and justify the imposition of the death penalty was that the vast majority of South Africans supported the death penalty and that this fact had to be given due consideration by the Court when deciding on such an important issue of public policy. Justice Arthur Chaskalson rejected this argument contending as follows:

The question before us, however, is not what the majority of South Africans believe a proper sentence for murder should be. It is whether the Constitution allows the sentence. Public opinion may have some relevance to the enquiry, but in itself, it is no substitute for the duty vested in the Courts to interpret the Constitution and to uphold its provisions without fear or favour. If public opinion were to be decisive there would be no need for constitutional adjudication. The protection of rights could then be left to Parliament, which has a mandate from the public, and is answerable to the public for the way its mandate is exercised, but this would be a return to parliamentary sovereignty, and a retreat from the new legal order established by the 1993 Constitution. By the same token the issue of the constitutionality of capital punishment cannot be referred to a referendum, in which a majority view would prevail over the wishes of any minority. The very reason for establishing the new legal order, and for vesting the power of judicial review of all legislation in the courts, was to protect the rights of minorities and others who cannot protect their rights adequately through the democratic process. Those who are entitled to claim this protection include the social outcasts and marginalised people of our society. It is only if there is a willingness to protect the worst and the weakest amongst us, that all of us can be secure that our own rights will be protected.

This is a difficult question to get one’s head around. As Justice Chaskalson pointed out, the Court has a duty to protect the “worst and the weakest amongst us”. If it merely followed the majority opinion on every issue, there would not really be any significant role for the Constitutional Court in enforcing the provisions of the Bill of Rights and the Constitution would become pretty meaningless. Public opinion therefore does not and should not dictate individual decisions of the Constitutional Court.

But the Court does not operate in a political vacuum and it is reliant on the support of others to ensure its long term institutional survival. It does not have an army or police force at its disposal and cannot raise taxes and hence its position can seem pretty tenuous. If it does not have external support from powerful forces in society, it may find it difficult to make its decisions “stick” or even to survive in tact as a relatively principles institution that protects those who cannot rely on the political process for protection.

Perhaps one way to understand the field in which the Constitutional Court operates, is to distinguish between different kinds of opinion blocks and to argue that the Court requires support from at least some of these blocks to safeguard its institutional independence and survival. While public opinion is not crucial, the opinion of all power blocks in society does and should play a role in the way in which the Court operates.

In a one party-dominant democracy like South Africa, one such block would be the political elites aligned to the governing party. Perhaps the unpopular death penalty and same-sex marriage decisions could be at least partly explained by the fact that the ANC and its allies supported these decisions — even though the vast majority of South Africans opposed it.

This does not mean that the Constitutional Court cannot make decisions that are not supported by the ANC. After all, the ANC does not operate in a political vacuum either. The ANC derives its legitimacy and its ability to govern the country with some authority not only from the fact that the majority of voters support it during elections. It also relies on the support (or at least acquiescence) of big business, an independent and free media, civil society, lawyers and other judges and the international community.

It is therefore in the interest of the ANC to accept decisions of the Constitutional Court when such decisions are supported by some of these groups or where these groups support the Constitutional Court as an institution and would defend its right to make decisions based on its interpretation of the Constitution. As long as these powerful blocks support the Constitutional Court as an institution, it is in the ANC’s own interest to respect the decisions of the Court – even when it does not support a specific decision of the Court. Unless the ANC is prepared to destroy its own legitimacy as a political party or unless it is prepared to sabotage the country for short term political gain (as happened in Zimbabwe) it has no other choice but to accept decisions of the Court that it does not agree with.

But this would only hold true if the Court has sufficient support from either the voters or from other  important power blocks. Surveys show that the Constitutional Court does not enjoy unqualified support from the majority of South Africans. Its institutional strength comes in part from support by civil society and other powerful blocks in our society. If it consistently handed down decisions that were legally implausible, displayed a naked political agenda and appeared unprincipled, the Court might lose support of many of these actors.

The Court may also strengthen its position by become more activist and by becoming a more adventurous pro-poor institution. The Supreme Court of India is often said to have gained much institutional legitimacy because of its interventions on behalf of the poor. It has taken on the state and governing parties and other powerful role players to help vindicate the rights of poor and destitute communities and has gained much popularity in the process. It would now be difficult if not impossible for the governing party to curtail the powers of the Indian Supreme Court.

If I am correct, it would be important for the Court consistently to hand down well-reasoned decisions that are legally plausible and progressive. It would also be important for the Court to avoid creating the impression that the Court has been captured by the governing party or by other powerful dominant forces in society (like big business or other elite interests).

Even if a specific decision might not be supported by the majority of voters or by the ANC elite, it might actually help to strengthen the institutional position of the Court as it might help to garner support from civil society, the trade union movement, the legal profession, big business or the population at large who might begin to see the Court as an independent and reliable institution who can deal honourably with complex and controversial issues outside the party political arena.

I suspect that judges will deny that they ever think about these issues. And it is far from clear that legal academic Theunis Roux is correct when he seemingly argues that Constitutional Court judges consciously veer between principle and pragmatism in order to secure the court’s institutional legitimacy. Yet, the jurisprudence of the Court suggests that the judges do struggle with finding a balance between respecting the power of the democratic branches of government while handing down principled and legally plausible judgments. Acutely aware that it is unelected, it does not want to become a co-governing branch of government. At the same time it understands that it has a duty to interpret and enforce the Constitution and that this might sometimes tread on the toes of the other branches of government.

What is a court to do? Handing down well-reasoned, credible and principled judgments that display some understanding of the history of our country and of the present social and economic context in which the Court operates, and shows sufficient concern for the plight of the poor, the marginalised and the destitute would probably be a good bet. Consistently handing down unprincipled judgment that will not be legally credible and will alienate it from civil society, lawyers, judges, the independent media and the majority of ordinary citizens in an effort to placate the ANC will probably be counter productive for the Court in the long run.

But maybe I am wrong. These are just preliminary thoughts and I would be interested to hear what the thoughtful contributors to this Blog have to say on the matter.

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