Judging the judiciary: Izak Smuts

2012-02-18 08:58

President Jacob Zuma’s recent ­suggestion that the powers of the Constitutional Court should be reviewed is the latest in a series of threats to our courts and our Constitution.

The excuse advanced for the latest threat – that there is a lack of unanimity in judgments emanating from the highest court – reveals more about the ghastly level of legal advice to which our government is subjected than the role of the courts. Established democracies across the world do not expect unanimity from their highest courts; they expect honest ­engagement with the law.

The Constitution-making process of the 1990s resulted in a constitutional democracy founded upon the rule of law, in which provision was made for a separation of powers among the legislature, the executive and the judiciary. The Constitution became the ­supreme law of the republic.

In the words of the Supreme Court of Appeal in the recent DA judgment, “ours is a government of laws and not men and women”. The innuendo in the recent debate that the judiciary somehow poses an obstacle to the transformation of society through its enforcement of the values of the Constitution is ­premised upon a failure to recognise the ­obligations imposed upon the executive and the legislature, as much as on the judiciary, to honour, obey, uphold and promote the ­Constitution and its values.

The former Lord Chief Justice of England, Tom Bingham, records that the core of the rule of law principle is “that all persons and ­authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly ­administered in the courts”.

TRS Allan, the Cambridge-based constitutional lawyer, argues that “it is chiefly the ­combination of the principles of due process and equality that enables the rule of law to be properly characterised as a ‘rule of reason’”.Examining the impact of the rule of law on governmental structures, Allan argues that the “principles of procedural fairness and equality assume the existence of a separation of powers between the principal organs of government”.

“The executive, charged with the formulation and application of public policy, must act always within limits and for the general ­purposes stipulated by the legislature, and there must be courts or tribunals that are ­independent of the executive and able to ­provide a remedy when a person’s treatment contravenes those limits or purposes.

“Moreover, the superior courts must be clearly independent of the legislature, acting as servants of the constitutional order as a whole rather than merely as instruments of a majority of elected members of the legislative assembly.”

The South African-born legal philosopher David Dyzenhaus contends in respect of the three arms of government “that it is better to understand their relationship in terms of what they share and not in terms of what separates them, since their separation is in the service of a common set of principles. The powers are all involved in the rule of law project. They are committed to realising principles that are ­constitutional or fundamental.”

He argues: “The rule of law turns out then to be constitutive in that legislatures and ­executives which understand their role in its maintenance will undertake experiments in ­institutional design in order to make law’s rule into reality, and judges have a crucial role in keeping these institutions of government on that path.”

Much of the heat in the current debate is ­generated by a failure to comprehend the equal obligations of all three arms of government to promote constitutional values. If, in its determination of policy, the executive were to commence with the identification of the constitutional values applicable to the particular policy area, and then to determine the most effective means of giving effect to those values, and if the legislature were ­similarly to commence the legislative process with the identification of the applicable ­constitutional values, and then to encapsulate those in the legislative product, I would wager that the judiciary would play a significantly less central role than it is at present required to do.

If, on the other hand, the policymaking and legislative roles are at best approached with no regard to the applicable constitutional ­values, or at worst by determining the most effective ways of avoiding or circumventing those values, the courts are in for a busy time.

It is time that all arms of government take to heart the admonition of Dyzenhaus that they “regard themselves as participating in a common project” of realising our constitutional values.

When all three arms of government accept this truth, we can commence a meaningful ­debate on the best manner in which they can cooperate in giving true effect to the values of our Constitution, and to promoting the ­society it seeks to build. That is the debate we should be pursuing.

» Smuts is the vice-chair of the General Council of the Bar of South Africa and a member of the Judicial Service ­Commission. He writes in his personal capacity

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