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.”
GOVERNMENT MUST PROMOTE THE SUPREMACY OF THE CONSTITUTION AND
THE INDEPENDENCE OF THE JUDICIARY
The statement issued by Cabinet on 24 November 2011 (Cabinet Statement) setting out its views on the transformation of the judiciary correctly identifies three fundamental areas that require public deliberation and action.
The areas of public interest identified are access to justice for the majority of people, continued transformation of the judiciary and “the regular monitoring of the implementation of … court decisions by all State Departments.”
These sound objectives are duties imposed by the Constitution as the supreme law governing all law and conduct in our country. However, at this point we wish to engage the worrying aspects of the Cabinet Statement.
INDEPENDENCE OF THE JUDICIARY, SUPREMACY OF THE CONSTITUTION AND CO-OPERATIVE
1. In its statement Cabinet wrote that it “affirm[s] the independence of the judiciary as well as that of the executive and parliament with a view to promoting interdependence and interface that is necessary to realise transformation goals envisaged by the Constitution.” In our view this reasoning confuses the separation of powers, co-operative governance and judicial independence.
2. Section 165 of the Constitution holds that the “courts are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”
3. The Constitution also holds that co-operative governance means that in “the Republic, government is constituted as national, provincial and local spheres of government which are distinctive, interdependent and interrelated.” The Courts, which are empowered to adjudicate any dispute between different levels of government, are neither “interdependent” nor required to “interface” with government. This would undermine real and perceived judicial independence.
4. Hearings and judgments of the Courts are public and their reasoning subject to scrutiny and appeal.
5. The Constitutional Court has the final power to determine the constitutionality of the conduct of individuals, corporations, and the executive, including the President. This power is also exercised over the laws passed by Parliament.
6. The Courts do not have an army, a police force or an independent tax base with which to enforce their own decisions. Their only source of power comes from the Constitution. The Courts speak only through their judgments, and are often unable to respond fully to “assessment” and criticism of their decisions. Therefore, the promotion, by the state, of the independence and integrity of the judiciary is a prerequisite for a society based on “[h]uman dignity, the achievement of equality and the advancement of human rights and freedoms.”
7. It is also appropriate for the executive to take steps to analyse and interrogate the decisions of the Courts, especially when it does not agree with them. Nevertheless, all court decisions must be implemented.
8. We recognise the need for individuals and organisations to critically evaluate the performance of any institution charged with realising the objects of the Constitution. This manifestly includes the courts generally and the Constitutional Court in particular.
9. However it is incorrect for the executive to commission an overall “assessment” of the decisions of the Constitutional Court. This may be interpreted as an attempt to intimidate the Court, especially given the Court’s record of holding government to account. It would equally be constitutionally impermissible for the Constitutional Court to order an overall “assessment” of government decisions, laws and policies. This would violate the separation of powers.
10. The Constitutional Court has a vital role to play in the social transformation of South Africa, through the Constitution and the Rule of Law. At its best it advances the rights of the poor and the marginalised in society. Judicial independence is essential to maintaining this potential.
11. We call on Cabinet to clarify its statement and provide detail as to why an assessment of the Constitutional Court’s decisions is now required.
Centre for Applied Legal Studies, University of the Witwatersrand (CALS)
Centre for Human Rights, University of Pretoria (CHR)
Equal Education (EE)
Human Rights Institute of South Africa (HURISA)
Institute for Security Studies (ISS)
Law, Race and Gender Unit at University of Cape Town (LRGU)
Lawyers for Human Rights (LHR)
Legal Resources Centre (LRC)
Ndifuna Ukwazi (NU)
Open Democracy Advice Centre (ODAC)
Right to Know Campaign (R2K)
Social Justice Coalition (SJC)
Socio-Economic Rights Institute (SERI)
Southern Africa Litigation Centre (SALC)
Students for Law and Social Justice (SLSJ)
Tshwaranang Legal Advocacy Centre (TLAC)
Treatment Action Campaign (TAC)
Women’s Legal Centre (WLC)
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