The law, like the suburban American house, is designed to order a particular pattern of relationships, many of them oriented around the heterosexual nuclear family. For real people in contemporary circumstances to inhabit the house the law built, one has to find side doors and discreet corners, while the dominant space changes little and the façade remains unaltered. The two big L.G.B.T.-rights Supreme Court victories that came before Bostock—Windsor and Obergefell—did exactly that: they carved out a place for monogamous same-sex couples who want to marry (statistically, these are more apt to be white middle-class people like the plaintiffs) in the house of the American nuclear family.
Opening Address by Justice Yacoob, Judge of the Constitutional Court of South Africa (Acting Deputy Chief Justice of South Africa) presented at Constitution Week on Monday 12 March 2012 at the University of Cape Town, South Africa.
Programme Director, colleagues (and in this concept I include all people engaged in the law as students, academics, practitioners or judicial officers, retired or not), government representatives, honoured guests, ladies and gentlemen.
I am very grateful to the Democratic Governance and Rights Unit for this invaluable opportunity to take part in this series of events. I feel particularly honoured because the series is beyond doubt an ingredient that is both integral to and necessary for the process of forging an appropriate constitutional order: a constitutional order that is vibrant, responsive and dynamic. And a dynamic constitutional order is necessary to ensure that we have a dynamic Constitution. The importance of the activities planned by the Unit cannot be over-emphasised.
It is customary to describe the Constitution as an instrument that determines the relationship between and the functions of the three arms of government namely the executive, the legislature and the judiciary. This is certainly an important aspect of constitutionalism and I return to this aspect later. But for me this is not the most important element of our Constitution. The Constitution has been enacted not merely to give effect to a settlement between opposing forces in the struggle for our democracy, not merely to regulate government for its own sake, not merely to define the powers of governmental institutions but for the benefit of all the people of our country. More particularly the Constitution is there to ensure that people who are vulnerable and marginalised because of their poverty or for other reasons are protected and their quality of life improved. In this respect, we must always remember (in particular during the discussions of this week) the powerful vision the Preamble to the Constitution proclaims for all of us:
We therefore, through our freely elected representatives, adopt this Constitution as the supreme law of the Republic so as to-
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will of the people and every citizen is equally protected by law;
Improve the quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.”
The rights in the Bill of Rights must be read in the context of this Preamble. There is a tendency of many to believe in the light of the way the Bill of Rights is framed that the passing of the Constitution has already resulted in the achievement of the rights enshrined there. Nothing could be further from the truth. We know that inequality, suffering, poverty, inhumanity and indignity remain the order of the day for many millions of people in this country. The Constitution creates a framework, a launching pad if you like, for the achievement of the society described in the Bill of Rights. It places an undeniable obligation on all the people of our country including everyone present here to leave no stone unturned in the process of achieving this result. This is essential to a dynamic Constitution. Unless this happens, the Constitution will not only be static but in addition will not be worth its paper.
A dynamic Constitution also implies a living instrument, a facilitator that has a life of its own and which breathes life and positive energy into the people of the country. Now a Constitution cannot be a living flexible instrument, a truly dynamic change agent if it is interpreted by reference to the intention of its makers. In my view, the Constitution must be interpreted, not to determine the intention of those who made it, but on its own terms and to achieve the society it promises. The Constitution in this sense has a certain timelessness and possibilities of enduring positive growth. I therefore have some difficulty with an approach that emphasises too much the intention of constitution-makers. That intention would in theory be wholly irrelevant. In practice however the intention of the makers of a Constitution would become less relevant with time. In our deliberations therefore we should bear in mind that our Constitution was adopted sixteen years ago.
A dynamic Constitution requires the participation of civil society. The Constitution should never be the preserve of constitutional lawyers alone. The Bill of rights in our Constitution is in my view its main pillar. But the values the Bill of Rights represents and reflects will die unless the majority of people in our country know and understand them, internalise, feel and live them. This can occur only if all of us do what the Constitution requires of us. Each of us has an obligation to do what we can to ensure that the Constitution and the Bill of Rights in particular is made known to and understood by the people of our country. I have never understood for example why it is that our Bill of Rights is not a significant item in the orientation program for new students irrespective of whether they are studying law at every university in our country. I have made this proposal at three universities thus far, but I almost sure, (I hope I am wrong about this), that none of them has accepted the suggestion. I would hope that someone present here will explain why. Our Bill of Rights is not more than ten pages long. It should not be over expensive or particularly burdensome to make a copy available to every new student at every institution of learning.
The ways in which the message of our Constitution and our Bill of Rights can be taught and popularised are innumerable. Schools might do well to have the subject of the Bill Rights and our Constitution on their curricula, political parties might teach rights at their political schools, and government might ensure, and I should hope that this suggestion is not too high an expectation of government, that all the members of the public service imbibe the values of the Constitution. One would have expected, at the very least, that appropriate structures and measures would have been in place to ensure that all members of the public service receive instruction on the values of the Constitution so that these values would resonate in the course of their work. At the very least, members of the public service should have been orientated to that chapter of the Constitution that is binding on the members of the public service and set standards for how the people of this country should be treated. I have spoken to many a member of the public service and, to my surprise, they say that the chapter on the public service has not formed part of their training and orientation program.
I must now say something about the difference between constitutional supremacy and parliamentary supremacy. The minority white Parliament was supreme in our country until 1994. Although South Africa did have a Constitution then, it was not supreme in the true sense of the word nor was it underpinned by a rights-based normative system of law. Our present Constitution proclaims its own superiority and says without qualification that all law and conduct inconsistent with it is invalid. We must remember here that the implementation of government policy is conduct that must comply with the Constitution. No state conduct is excluded from constitutional scrutiny. The supremacy of the Constitution has an obvious implication which is quite often not recognised. It is this. The corollary to the proposition that the Constitution is supreme is that none of the legislature, the executive or the judiciary can be supreme. We are all subject to the Constitution.
The fact that the Constitution is binding on all arms of government renders it necessary to determine a mechanism for deciding whether the Constitution is being complied with. That mechanism chosen in the Constitution is the courts. It may be that some other mechanism may be considered appropriate in the future but we must proceed on the basis that the courts make this determination. It is the duty of the court to set aside any law or conduct if that law or conduct is found to be inconsistent with the Constitution. It must be remembered that neither the executive nor the legislature has the power to decide whether there has been compliance with the Constitution. It may be said by some that this system that has been adopted in our country renders the judiciary and, in particular the Constitutional Court too powerful. I have often heard the following question asked in the context that courts pronounce on whether the executive and legislature have complied with the Constitution: “who checks on whether the courts in making their decisions have complied with the Constitution?”
If this question is meant to suggest that there are three equal arms of government and that fairness requires each to check on the constitutionality of the exercise of powers by other arms of government, I find myself unable to agree. In my view, the Constitution itself has its own checks and balances in relation to the power of the judiciary and its possible political impact. Take for example the way in which Constitutional Court judges are appointed. The Constitution shows an awareness of the politically sensitive nature of the role of the Constitutional Court when it exercises the power to make a final decision on legality or constitutionality. It is for this reason that the method of appointment of the judges of the Constitutional Court and those of other courts is different. The Chief Justice and the Deputy Chief Justice are appointed by the President of the country after consultation with the Judicial Service Commission and leaders of parties represented in the National Assembly. The President also has a significant and crucial role to play in the appointment of the other judges of the Constitutional Court. The Judicial Service Commission is obliged to submit to the President three names in excess of the number of judges that are to be appointed to the Constitutional Court. The President can appoint any of the people recommended by the Judicial Service Commission and, if not satisfied with the names submitted, can ask for more names. All other judges are appointed by the Judicial Service Commission and it must be emphasised that judicial representation on the Judicial Service Commission is minimal.
In the majority of cases where there are disputes about the constitutional validity of a law or government conduct, the dispute would start in the High Court, the executive is heard and a reasoned judgment in the High Court is given. The case comes to the Constitutional Court only after that. Sometimes we would also have before us a reasoned decision made by the Supreme Court of Appeal who would also have paid due consideration to the views of the executive. The Constitutional Court will consider carefully argument of the executive in relation to the constitutionality of the law or conduct before making up its mind.
But judging remains an extremely complex, sensitive and difficult exercise. It is not a mechanical exercise. That is why there are often differences of opinion. Many express the view that judges must be objective in making their decisions. In my view however there is a difference between objectivity on the one hand and independence and impartiality on the other. The latter are essentials but the value of the former is doubtful. All judges are human beings who determine issues that concern other human beings. An element of subjectivity in the decision-making process is not only inevitable but in my view necessary. The job of a judge is not to pretend objectivity but to be continuously vigilant to ensure that decisions are not the product of over-subjectivity. We can never escape our own humanness.
As Cardozo J said:
There is in each of us a stream of tendency, whether you choose to call it philosophy or not, which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them – inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs. . . . In this mental background every problem finds it[s] setting. We may try to see things as objectively as we please. None the less, we can never see them with any eyes except our own. . . . .
Deep below consciousness are other forces, the likes and the dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the [person], whether [she or he] be litigant or judge (Benjamin N Cardozo in The Nature of the Judicial Process (1921) at 12-13, and 167).
The fact that judges differ with each other is therefore not something to bemoan. Differences of opinion are vital to a healthy judiciary and to the development of a vigorous jurisprudence. As has been said many times, the dissent of today could be the majority judgment of tomorrow. I would be perturbed indeed if eleven judges of the Constitutional Court agreed with each other judgment after judgment, year after year. This would be an indication of a judiciary that is not sufficiently representative, and lacking the strength required for true independence and impartiality.
This does not mean that the courts are the only permissible mechanism for determining whether the executive and the legislature have complied with the Constitution. Other independent mechanisms could well be set up to make these determinations. All I would warn is that the legislature and the executive cannot check themselves. Whatever mechanisms are created must be sufficiently independent and impartial to resolve disputes about the constitutionality of the exercise of power with credibility.
Another way in which to improve the judicial function in our country is to ensure that the way in which the function is performed is always under scrutiny and the subject of robust debate amongst academics, lawyers and, of course, all the people of our country. The debate that we will have today about whether judges have intruded too much into the political process is vital to the maintenance of a healthy judiciary. While the result of debates will never conclusively determine whether a particular judicial approach is right or wrong the debate itself is very useful and will undoubtedly have an impact on judicial decision-making. In this context, the words by the former Chief Justice Chaskalson in the case concerned with the death penalty when dealing with the submission that public opinion was in favour of the death penalty are apposite (S v Makwanyane and Another  ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; 1995 (2) SACR 1 (CC)):
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.
I now touch upon the question of constitutional review. No Constitution is written in stone. In the first place, as I have said earlier, an interpretive exercise that is not bent on ascertaining the intention of the drafters of the Constitution would result in a living, flexible, relevant Constitution. But the Constitution is in every sense a political document created by the legitimate representatives of the South African people participating in a Constitutional Assembly. It is the product of vast consultation. It can however be amended provided that certain requirements are met. The only requirement relevant for present purposes is the number of votes in the National Assembly that are required to amend the Constitution. Our Constitution regards the general principles set out in section 1 as more important than other parts of it. It reads:
The Republic of South Africa is one, sovereign, democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.
(b) Non-racialism and non-sexism.
(c) Supremacy of the constitution and the rule of law.
(d) Universal adult suffrage, a national common voters roll, regular elections and a multi-party system of democratic government, to ensure accountability, responsiveness and openness.”
This section can only be changed by a vote of 75% of the members of the members of the National Assembly. Other amendments to the Constitution require two-thirds of the members of the National Assembly to vote for it.
Constitutional review must be understood in the light of this power to amend. We must always be thinking about whether our Constitution remains good for us. We must have the courage to change our Constitution when we need to and wisdom to know when change would be unnecessary, counter-productive or negative in some other way.
The next issue I must address briefly is what has been referred to as the review of the work of the Constitutional Court or a review of the role of the judiciary. As far as I am concerned there is absolutely nothing wrong with an evaluation of the work of the Constitutional Court or any other court. I would take results of evaluations of this kind extremely seriously. All of us value any reasoned opinion that seeks to show that a particular judgment was wrong. I am certain that any opinion expressed at the end of any judicial review process will be taken seriously by every judge in the country.
Finally, I must talk about an idea that has been expressed lately to the effect that there should be some measure of co-operation between the judiciary, the legislature and the executive. The thesis is apparently that all branches of government aim at achieving the same result and should in some senses work together. I would assume that this cannot be intended to mean that the executive and the legislature should be able to discuss matters of importance with the judiciary directly and outside a court hearing, in an effort to influence it. If this is what is meant I would find it difficult to agree. It is obvious that there must be discussion between the judiciary and the executive about budgets, facilities and matters of this kind.
But the conversation between the courts on the one hand the legislature and the executive on the other is of a different kind. It is not about branches of government talking to each other privately and secretly to obtain a common understanding of the needs of our country. The executive and the legislature on the one hand and the judiciary on the other should indeed talk to each other and do indeed talk to each other. But they do so in a specialised structured way. When the Constitutional Court hears a case involving the executive or the legislature, at least the executive is represented in Court by counsel. Counsel’s argument reflects the position of the executive and conveys that position to the Court. Judges would ask questions on the written material presented during oral argument. The judgment of the Court would be the final position taken after argument is heard. And that is not the end of the conversation either. If courts have misinterpreted legislation in the view of the executive or legislature, the legislature might well amend the legislation so that it says precisely what the legislature meant it to say. The conversation between the judiciary and other branches of government must be open, structured and designed to ensure that judges are able to perform their functions independently and without fear, favour or prejudice.
It remains for me to wish you successful deliberations in the next few days and to express my certainty that your discussions will take the constitutional project forward in a meaningful and material sense.
Z.M YacoobBACK TO TOP