Mixed signals on the review of our courts

The government yesterday sent mixed signals about its previously announced intention to “review” the decisions of the Constitutional Court when it released a “discussion document” which (laudably) affirmed its respect for the independence of the judiciary and the notion of the separation of powers, but (worryingly) seemed to question the wisdom of retaining a distinctly adversarial system of judicial review.

This antagonism towards an adversarial kind of judicial review seems to be focused primarily on cases where the courts were not enforcing social and economic rights and where the judicial review of government action would signal a failure on the part of the judiciary to “co-operate” with the other arms of government in pursuit of (unnamed) constitutional values or goals.

Speaking at a media briefing yesterday, Minister of Justice Jeff Radebe announced the release of a discussion document on the transformation of the judicial system and the role of the judiciary in a developmental state (Pdf document) to frame a “national dialogue” on this programme of “further transformation”. These documents are conceptually incoherent and its authors seem to be confused, as it tries to marry a consensual model of separation of powers with a model that retains (some form of) judicial review for an independent judiciary. One cannot have both a consensual model of separation of powers and an independent judiciary that acts as a true check on the exercise of power by the other branches of government. Suggesting that one can, is at best misinformed and at worst misleading.

This conceptual confusion probably flows from the fact that the government of the day is retreating slightly from its position taken in November last year about the need for a serious review of Constitutional Court decisions. This retreat might have been caused by the public outcry about the perceived intention of the government to interfere with the powers of the courts to review and set aside acts by the other branches of government.

It might also be animated by the sinking realisation that both the proposed review of the Constitutional Court and any possible amendments to its powers will be impossible to implement. After all, who will actually be able to peruse all the documents before the Constitutional Court in every single case ever heard by that court to make a sensible assessment of its performance? And in the absence of such a wide ranging perusal of all relevant documents, any review of the Court will be nonsensical and meaningless as it will not tell us anything about whether the court fulfilled its mandate (or whether it was, for example, hampered in its task by the tardiness of the lawyers who appeared before it or the dismal quality of the papers before it).

The discussion document talks about a need for “further transformation of the judicial system”, but fails to indicate what such further transformation would be aimed at or how it might look. The review clearly does not relate to the current package of constitutional amendments and laws before Parliament aimed at streamlining the courts and enhancing the powers of the Chief Justice. This is because the Minister stated that the current reforms will be finalised before the review is actually concluded. It is therefore unclear what “further transformation” (over and above the current package of amendments and Bills) is envisaged by the government. However, answering questions at the media briefing yesterday Minister Radebe refused to rule out further amendments to the Constitution, suggesting that the government is keeping its options open and that the outcome of this review will depend on which faction in the cabinet gets the upper hand.

In the discussion document and in the speech delivered by the Minister at the media briefing, the government re-affirmed the longstanding commitment of the ANC towards the respect for human rights. The Minister also stated that the envisaged further transformation of the judiciary is underpinned by the separation of powers and an independent judiciary.

Arguing that the values contained in the Constitution – including that of an independent judiciary and the rule of law (but significantly not including the supremacy of the Constitution and judicial review) – are also the values that the ANC has consistently stood and fought for, the Minister stated that the ANC-led government would defend these values at all cost. The Minister recognised that the judiciary had an important role to play in transforming the state and society and in safeguarding and protecting the Constitution and its values through its “constitutionally entrenched judicial authority”.

However, it is not as clear from the Minister’s speech as it should be that the ANC-led government’s continued commitment to the separation of powers and an independent judiciary includes a continued commitment to the principle of the supremacy of the Constitution and the powers of the courts to review and declare invalid not only those provisions of legislation which are in conflict with the Constitution, but also those actions by the executive which infringe on human rights, are not authorised by law or fail to comply with the requirements of rationality and non-arbitrariness which are inherent in a system based on respect for the Rule of Law.

In fact, it is clear that the government is at best uneasy with the notion of an independent Constitutional Court that acts as a vigorous but necessary check on the other branches of government. It would prefer a court that works with government to achieve a common goal – rather than a court that vigorously and in an “activist” manner checks the powers of the other two branches of government and embarrasses the legislature and especially the executive by sometimes declaring some of their actions unconstitutional and invalid.

Judges, suggested Minister Radebe, must exercise their power of judicial review “with great circumspection”. The three branches of the state, claimed Minister Radebe, “are co-equal partners entrusted with distinct constitutional powers in their quest to realise the ideals of a democratic South Africa”. Whether this would mean that one branch – the judiciary – would retain the necessary power to trump the other branches when those branches failed to act in compliance with the Constitution or ordinary law (and hence would retain the power to declare invalid unconstitutional laws and unlawful and unconstitutional acts by the President and other members of the executive), is not as clear from this statement as it should have been.

To be fair, the discussion document affirms that the modern concept of constitutionalism rests on two main pillars:

First, the existence of certain limitations imposed on the state, particularly in its relations with citizens, based on certain clearly defined sets of core values. Secondly, the existence of a clearly defined mechanism for ensuring that limitations on the government are legally enforceable. In this broad sense, constitutionalism has a certain core, irreducible and possible minimum content of values with a well-defined process and procedural mechanisms to hold government accountable.

As the discussion further notes, there are some debate about the degree to which judges should be empowered to “interfere” with the decisions of the other branches of government:

Striking a balance between policy and law becomes necessary in the current times where courts are increasingly placed in a situation where they have to pronounce on matters of public policy. The interface between the courts’ power of judicial review and the policy terrain that is the purview of the Executive and the Legislature becomes even more delicate in the South African situation where the Constitution enshrines a justiciable Bill of Rights. It is in this context, in particular in the interpretation of the socioeconomic rights in the Bill of Rights, that judicial power should, by necessity, be vested in a mechanism independent of the legislative and executive powers of the government, with adequate guarantees to insulate it from political and other influences.

The government seems to have realised that – as a matter of practical politics and constitutional design – it will not be possible at present to address its unhappiness with the courts who strike this balance differently than the government would have wanted them to, as the government will not be able to reduce the powers of the courts to review and set aside unconstitutional or other unlawful acts by the legislature and the executive.

Instead, there are passages in the document which suggest that the government is hoping that it will be able to water down the independence of the judiciary by creating mechanisms that will help to break down the strict separation between the judiciary on the one hand and the other two branches of government on the other. The conceptual incoherence comes to the fore in these passages which, quite frankly, I find rather frightening. This is because the passages suggests a fundamental lack of understanding and/or respect for the separation of powers and the system of checks and balances in a constitutional democracy. The document thus makes the following extraordinary claim:

The importance of the legislative, executive and judicial branches of the state to cooperate and act interdependently in exercising their distinctive constitutional obligations for the common good of the country cannot be over-emphasised. Government must function as an integrated, singular unit in pursuit of the vision set out in the Constitution. Formidable state machinery, acting in unison, is a requisite to overcome the colonial and apartheid legacy of inequality, and the deprivation of the majority of our people. The principle of separation of powers envisages a system of mutual co-existence and interdependence by all three branches of the state.

Of course, if the three branches were to act in complete unison as an integrated singular unit “for the common good” (a common good defined by those politicians who happen to be in power), it would be difficult to see how one branch of that government would consistently declare invalid the acts of the other branches of the government with which it works in unison. At best the branches will debate the constitutional issues at stake beforehand and the two political branches will alter course to ensure compliance with the Constitution. At worst the two political branches will be able to prevail politically on the judiciary to re-interpret the provisions of the Constitution to give the legislature and executive more leeway to do as they please.

This vision of the three branches all working as an integrated whole towards a common goal (defined by the political party in government) therefore seems to be at odds with a modern notion of a separation of powers in a constitutional state in which the courts retain the power vigorously to check the power of the other two branches of government. The document quotes from a chapter in a Canadian Law Commission Report entitled “Interdependence not independence: Institutional and administrative dimensions of judicial independence”, written by Richard Simeon to support its view. Simeon argues for the need for interdependence and the collegiality of effort for the effective coordination and consolidation of programmes of the state towards a common vision. With reference to the American Constitution (but not in line with the South African jurisprudence) Simeon makes the claim that no clear lines can be drawn between the branches of government:

The doctrine of separation of powers is often invoked to justify the institutional independence of the Judiciary. But sometimes forgotten is the other core of the principle of the US Constitution, checks and balances. The American constitutional design does not envision the three branches as existing in splendid isolation from each other. Rather, tyranny is avoided by having each branch check and balance each other – in other words to be interdependent. The relationship among them is indeed ‘indelibly political’. A blend, as a US judge puts it, of ‘separateness, but interdependence, autonomy, but reciprocity’. At any time there is a dialogue, or negotiation with the other branches about… budget, jurisdiction, size, procedures, and administration.

What the document fails to say is that the chapter from which it quotes was written by a political scientists (and not a judge or a lawyer) and that the author introduced his remarks by saying that he was talking as someone concerned with public administration, a person who believed that the constitution was not of much help in any discussion about the relationship between the branches of government. It also does not mention that this view flies in the face of the view taken by the Canadian Supreme Court (which is indeed staffed by real judges, not political scientists) in the Reference re Remuneration of Judges of the Provincial Court (P.E.I.) judgement, a case in which that court made the following statement directly at odds with the views expressed by the discussion document:

under no circumstances is it permissible for the judiciary — not only collectively through representative organizations, but also as individuals — to engage in negotiations over remuneration with the executive or representatives of the legislature. Any such negotiations would be fundamentally at odds with judicial independence. … The prohibition on negotiations therefore does not preclude expressions of concern or representations by chief justices and chief judges, and organizations that represent judges, to governments regarding the adequacy of judicial remuneration….

What is at issue here is the character of the relationships between the legislature and the executive on the one hand, and the judiciary on the other. These relationships should be depoliticized. When I say that those relationships are depoliticized, I do not mean to deny that they are political in the sense that court decisions (both constitutional and non-constitutional) often have political implications, and that the statutes which courts adjudicate upon emerge from the political process. What I mean instead is the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary, and conversely, that members of the judiciary should exercise reserve in speaking out publicly on issues of general public policy that are or have the potential to come before the courts, that are the subject of political debate, and which do not relate to the proper administration of justice.

In the light of the above the proposal in the document regarding the closer co-operation between branches and the need for the branches to engage with one another in order to co-ordinate its activities so that it can operate as a single unit, is deeply troubling. The following proposal is therefore a non-starter and any judge – including the Chief Justice – who values judicial independence should reject it out of hand. The document namely proposes that one aim of any review would be to facilitate:

the establishment of mechanisms for the three branches of state to engage in regular debates to manage their interface within the context of the separation of powers in pursuit of a common transformative goal that is geared to benefit society at large.

Of course these proposals are not only conceptually incoherent, and in conflict with the understanding given to the separation of powers by judges and lawyers in other modern democracies, they are also doubly problematic in a country like South Africa with a one party dominant democracy in which the legislature and the executive (as well as the institution tasked with appointing judges) are dominated by one political party and where there is little chance that another party will take control of these branches of government or of the JSC in the medium to long term. In a one party dominant democracy, a proposal for the creation of mechanisms to allow for “debates” between the three branches of government, is a proposal to infuse party political concerns into the relationship between the three branches of government.

While the decisions of judges cannot be divorced from politics and while many judicial decisions will have political consequences, the infusion of party politics in the relationship between the legislature and executive on the one hand and the judiciary on the other will render a fatal blow to the principles of respect for the separation of powers and the independence of the judiciary as it will lead to an inevitable exertion of political pressure on the judiciary – as the Canadian Supreme Court warned so clearly.

The question that arises from this discussion document is the following: will the leadership of the judiciary go along with the proposals to infuse party politics into the relationship between the three branches of government or will they resist and fight for their independence and for their constitutionally conferred power to check the other two branches of government?

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