How not to criticise a court judgment

Reasonable lawyers may well disagree on whether the majority or minority decisions of the Constitutional Court judgment  in the Glenister case (dealing with the unconstitutionality of the Hawks) is the more cogently argued and which of the majority or minority decision reached the desired outcome. Although the public clearly supports the majority opinion (last night on Interface on SABC TV 95% of respondents indicated that replacing the Scorpions with the Hawks was a mistake), this is of little import when lawyers discuss which of these decisions is to be preferred.

Of course, when lawyers discuss these questions one would hope that they would do so with some understanding of the unique nature of the South African Bill of Rights and that their arguments would be based on an honest and fair assessment of the judgment. American Law Professor Ziad Motala took a stab at this in yesterday’s Sunday Times, but alas, I fear his slavish pro-executive views and his rigid ideological commitments tripped him up and led him to misconstrue aspects of the judgment and to present arguments more appropriate for the United States context (with its liberal Bill of Rights) than the South African context (with its post-liberal Bill of Rights).

The same mistake has often been made by both reactionaries and authoritarian critics of our Constitutional Court.

Prof Motala argues that the majority in the Glenister case failed to consider either the text of the Constitution or the principle of the separation of powers in its judgment. “The constitution does not mandate to parliament where to locate the anti-corruption unit,” writes Motala. This is a curious statement which does not seem to conform to the facts as the majority has not ordered the parliament to locate the anti-corruption unit anywhere. It has – appropriately – left this question open to parliament to decide.

Motala also expresses concern at the manner in which the majority dealt with the various international treaties which bind South Africa and which require the SA government to create a sufficiently independent corruption fighting unit. Motala argues that:

the majority ignored all precedent and said international agreements, even though not made self-executing, create an obligation to create an independent anti-corruption entity. What makes the majority approach particularly egregious is there is no single international law text which supports their conclusion on the relationship between the anti-corruption unit and the executive. More importantly, there is not a single precedent from any country in the world which the majority could cite to support their interpretation that international law required an anti-corruption unit in terms of the framework they posited.

Motala seems not to have followed the main argument of the majority. It did not find that the duty to create an independent anti-corruption unit flows directly from South Africa’s international law obligations. Instead the majority argued (as it has done in countless previous cases) that section 7(2) of the South African Constitution places a positive obligation on the state to protect, promote and fulfil the various rights in the Bill of Rights. (Of course, the US Constitution does not contain an equivalent provision to that of section 7(2), so one might forgive the learned Professor for his mistake.)

The majority then found that corruption infringes on the rights to achieve equality, human dignity, freedom and security of the person, administrative justice and socio-economic rights. In order to comply with its positive obligation to protect, promote and fulfil these rights, the state therefore had a duty to create a sufficiently independent anti-corruption entity as only such a body would be able to fight corruption effectively. 

International treaties were only used by the majority in order to help the court to interpret the text of the Constitution and to establish the scope and content of the obligation to protect, promote and fulfil this obligation to fight corruption to protect the various rights mentioned above. The majority thus turned to international law as it has done in countless other cases – including the famous Grootboom case – to assist it with its interpretation of section 7(2), read with section 9, 10, 1226,27 and 33 of the Constitution.

When the Grootboom case was decided, there was also not a single precedent from another country referred to by the Court because the text of our Constitution is rather unique. That did not deligitimise the Grootboom judgment – except, of course, in the eyes of the authoritarian left and the liberal right critics of the Court. At the time, critics of the court also claimed that the Court had involved itself in policy making and that it was therefore infringing on the separation of powers doctrine. Manto Tshabala-Msimang’s lawyers tried to put forward this view in the TAC case but this argument was rejected by a unanimous court.

Of course the argument that the Court should not involve itself in “policy matters” is based on a peculiarly liberal notion of separation of powers and on the traditional liberal assumption – now widely mocked by progressive lawyers – that at least in some cases one can draw a bright-line boundary between law on the one hand and policy on the other. But whenever a court is empowered to declare invalid acts of the executive and parliament and where a court can determine whether the other branches of government have fulfilled its positive obligations to protect, promote and fulfil the rights in the Bill of Rights, policy issues will potentially be implicated. It is not the task of the court to decide what policy the other branches of government should adopt, but it is the task of the court to say when policy choices made by other branches do not conform to the requirements set out in the Constitution (as interpreted by judges, of course). 

This is exactly what the majority did here. One might disagree with its reasoning or – for ideological reasons – with the outcome of the majority decision, but to do so on the basis that the court involved itself in policy choices, is to misconstrue the nature of the South African constitutional project. Arguing that the text of the South African Constitution “is clear on the separation of powers” is also perplexing as the phrase “separation of powers” does not appear in the text of the Constitution and the Constitutional Court has argued that it will – over time – develop its own version of the doctrine. The doctrine can therefore not be clear.

Prof Motala curiously claims an absolute certainty about the contours of our separation of powers doctrine, where there is none. He claims that the text of the Constitution is absolutely clear about this doctrine, when it is not. He claims the interpetation of the text by the majority creates “fringe meanings”, which is true, I guess, if one views it from a very particular ideological perspective, but untrue if one happens to support the creation of a truly independent corruption figting unit to protect, promote and fulfill the rights in the Bill of Rights.

The Constitution must be interpreted by the judges and different judges may well interpret different obligations differently, depending on their assessment of the text of the relevant constitutional provision, the socio-political context and of the purpose and structure of the constitutional text. One may well disagree with the specific interpretation of the text of the Constitution made by a judge (because there are almost always more than one credible interpretation of the often open ended provisions of a constitution). But to argue that the majority opinion was ideological (while the minority opinion seemingly was not) and that the majority opinion showed a great distrust for democracy and disdain for political accountability (while the minority did not), is no more than a political statement based on a particular ideological commitment to the relatively unchecked exercise of executive power.

We all have our ideological commitments, of course. Those of us who actually live in South Africa and experience the consequences of corruption and its corrosive effect on service delivery to ourselves and to others, might therefore be slightly more supportive of the majority decision than others who might have decided to leave South Africa to make a better living elsewhere, untroubled by the daily challenges of our society. We will be naive if we did not admit that ideology will often play a role in how we read and critique judgments of the Constitutional Court. I would argue that in this case the ideological choices are rather stark. Some of us might feel uncomfortable to be seen to stand on the side of the often venal political elites – others might not.

Quite frankly the separation of powers argument is a red herring. As Chief Justice Sandile Ngcobo stated at a public lecture last year, while we are still developing this doctrine we should conceptualise our separation of powers doctrine in terms of a dialogue between the legislature and the executive on the one hand and the judiciary on the other. Because the text and structure of our Constitution requires the Constitutional Court to determine whether certain policy choices of the legislature or the executive comply with the Constitution (as it has done in other cases like the Rail Commuters case, the Treatment Action Campaign case, the Khosa case, the Nicro case, and many other cases) one cannot argue in any credible way that when our Court declares invalid legislation that contains policy choices of parliament they overstep the boundaries of the separation of powers doctrine.

The Court must decide what obligations the Constitution impose (as it did here, providing cogent and reasoned arguments which one might or might not agree with, but which cannot be said to be absurd or illogical) and must then leave it to the other branches of government to comply with these obligations. This is exactly what the majority did in this case. It gave parliament 18 months to fix the problem. When it decides how to fix it, parliament will  consider different policy options and one will be chosen. Hopefully it will be a policy option that complies with the positive obligations imposed by the Constitution (as interpreted by the majority of Constitutional Court judges). If it does, that will be the end of the matter. If it does not, the dialogue may continue.  

Lastly, the complaint by Prof Motala that the majority rested their conclusions on “public perceptions”, seems revealing as it completely misconstrues what the Court had argued. The court – as it has done in several other cases – argued that the test for independence requires one to ask whether a reasonable person would believe that the institution under review is independent. This, however, is not how Motala presented the argument:

A judge should not be looking at opinion polls nor, for that matter, the ballot box in saying what the constitution represents. If we looked at the passions of the majority, the death penalty would have been introduced a long time ago and gay rights would have gone out the window.

This passage unfortunately does not engage in an honest and fair manner with the majority decision. Either Motala did not understand what the court meant or he has deliberately misconstrued the arguments advanced by the majority. It never said the views of the public had to determine what the Constitution meant. All it said was that one needs to ask whether – from the reasonable standpoint of the public – an independent unit has been created. This is the known test in our jurisprudence for determining independence. The fact that Motala does not know this or that he chooses to ignore it, rather discredits his whole piece of hackery.

To conclude, Prof Motala’s piece represents a lost opportunity to engage seriously and honestly with the majority decision. One may well argue that the minority decision – despite reaching an unpalatable outcome which seems to endorse potential political interference in corruption investigations – was legally the more cogent or politically more advisable. One may also argue that it is inappropriate to establish a truly independent corruption fighting unit in South Africa as this might lead to the prosecution and incarceration of one’s friends or of politicians of a party one happens to support. But then one needs to do so honestly and in a way that does not misconstrues the reasoning of the Court.

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