Now you cannot understand anything about fascist doctrine if you do not understand that their central claim was that liberalism is antidemocratic; in other words, the fascists claimed that liberal institutions cannot represent the will of the people. They further claimed that their typical institutions, particularly the party, were more effective means to represent the will of the people. So fascists were “authoritarian democrats.”
This was followed by the latest permutations to the effect that the Constitutional
Court’s powers have to be reviewed.
We must from the outset state that the decision by the cabinet as it stands lack the necessary flesh for us to adequately interrogate and diligently formulate an opinion on. However, on the face of what is before us or in the public domain, no matter how sketchy it seems to be, the following comments are apposite:
1. Section 74 (1) of the Constitution of the Republic of South Africa, which deals with Bills amending the Constitution makes a provision to the effect that Section 1 of this Constitution may be amended by a Bill passed by a National Assembly with a supporting vote of at least 75% of its members and 6 provinces supporting vote from the National Council of Provinces. The relevant founding provision of the constitution is Section 1 (c) which states that the Republic is one sovereign, democratic state, founded on the following values:
………(c) Supremacy of the Constitution and the Rule of law.
The powers of the Constitutional Court are derived from the constitution itself and inextricably from the abovementioned founding provision amongst others.
In the same vein, Section 167 (4) makes a provision to the effect that only the Constitutional Court decides on the constitutionality of any amendment to the constitution. To the extent that cabinet’s alleged contemplated review of Constitutional Court’s powers may necessitate amending the constitution, the powers to determine the constitutionality of such amendments, including the decision if challenged, vests with the Constitutional Court itself.
A determination on the above issues or any other constitutionally related issue will be made by the Constitutional Court either unanimously or by majority decision, which is not uncommon in other jurisdictions globally or everywhere in the general course of dispensing justice.
As much as we are alive to the concerns and the frustrations of the executive with regard to issues which may have given rise to the cabinet’s decision, it is imperative to understand the constitutional ramifications which may flow from any functionary of the state including cabinet.
This cabinet’s decision, in particular the row surrounding the contemplated review of the Constitutional Court’s powers seems to lack appreciation of the basic tenets underlying the doctrine of separation of powers, and this we say mindful of how contentious the issue is both locally and globally.
For as long as we remain a constitutional state (where constitutional supremacy reigns) as opposed to parliamentary sovereignty (where parliament reigns supreme), we are stuck with certain realities and consequences of what we bargained for.
In a nutshell:
1. Parliament may need 75% of votes to pass a bill for the review of powers of the Constitutional Court, a tedious exercise which may still be found to be constitutionally wanting, if challenged.
2. As it stands, the executive and the legislature do not have power to either amend or review powers of the Constitutional Court or the judiciary in general.
The only way, if that is the route to go is to divorce the current constitutional democracy and remarry the parliamentary sovereignty which route if followed as things stand may be subject to constitutional scrutiny and determination by the very institution which is the subject matter of the contemplated review.
We wish to add that in our view, there does not seem to be anything untoward with cabinet merely taking stock on pronounced judgments made with the view of making self assessment or self appraisal from a compliance point of view.
What may be an issue may be what we have already alluded to herein.
PER: P 8 MABUNDA
080 BLACK LAWYERS ASSOCIATION