Opposing the proposed appointment of a new Chief Justice of South Africa

After South Africa's Constitutional Court decided that President Jacob Zuma's extension of Chief Justice Sandile Ngcobo's term was unconstitutional (a decision I wrote about here and here), President Zuma announced his intention to appoint Mogoeng Mogoeng, already a justice on the Court, to be its Chief Justice. The Constitution requires the President to consult the Judicial Service Commission and political party leaders from the National Assembly prior to appointing a Chief Justice, and as one step in that process the Judicial Service Commission is accepting public comments about the appointment.

I've joined several other US-based law teachers in submitting a letter criticizing this proposed appointment. Here it is:

The Secretariat

The Judicial Services Commission

Private Bag XI

Constitution Hill

Braamfontein 2017

SOUTH AFRICA

August 26, 2011

Fax No. 011-27-86-649-0944

Chiloane@concourt.org.za

Dube@concourt.org.za

By e:mail and Fax:

This Memo is in response to the Judicial Services Commission’s call for public comments on the nomination of Justice Mogoeng Mogoeng as the next Chief Justice of South Africa. We are a group of USA-based law professors who have written extensively on South African constitutional issues, and who have followed the proceedings of the Constitutional Court since its establishment in 1995. We are all admirers of the jurisprudence of the Constitutional Court, particularly the court’s path breaking and innovative human rights jurisprudence.

We write to express our concern at President Zuma’s decision to nominate Justice Mogoeng Mogoeng as the next Chief Justice. We do so not to impugn the integrity of Justice Mogoeng, but to suggest that his appointment will betray the transformative vision embodied in the constitutional text and in the jurisprudence if the Constitutional Court thus far. Those of us who write and teach in the area of the constitutional law and human rights law have been inspired by that vision.

The Constitution of South Africa has been much heralded and constantly referenced by constitutional and human rights scholars and advocates. In addition, judgments of the Constitutional Court have been admired, particularly in the court’s human rights jurisprudence. Although some problems since 1994 have tested the capacity of the legal system, especially in the area of criminal justice, the South African legal system is for the most part highly regarded and widely admired. Several reasons account for this, but one is the caliber of judges appointed to the nation’s highest courts, including the Supreme Court of Appeal, but particularly the Constitutional Court. Indeed, the Constitutional Court’s first appointed judges constituted an impressive range of the country’s most admirable legal talent, including legal giants of the anti-apartheid legal establishment. The judgments of the court, and particularly its human rights jurisprudence, are widely cited and analyzed. It may not be an overstatement to suggest that the South African Constitutional Court is currently viewed as one of the pre-eminent constitutional courts for interpreting international legal principles, particularly as those principles pertain to human rights. Since its establishment in 1995, the Constitutional Court has achieved a solid reputation and an impressive degree of credibility among the international legal community. Its judgments have been seen as central to the transformative project of nation-building in South Africa, and a model to countries of the global north and global south.

The Constitutional Court is in fact one of the pre-eminent contemporary institutions articulating the transformative possibilities embodied in the international human rights texts. The Court has interpreted these texts in its judgments, and in doing so has provided a vehicle for lawyers, activists and law teachers internationally to pursue rights in their respective locations. The Constitutional Court may be a South African institution, but its reach and its audience are international. We are members of that international audience.

We believe the JSC has a responsibility to do more than decide whether the President's nominee is "qualified" to serve as Chief Justice. Rather, the JSC's special task is to reach a judgment about whether the nominee will sustain the momentum of the rights revolution in South Africa. As law scholars in the United States, we are well aware that the individuals serving on the highest court of the country can profoundly change the direction of its jurisprudence, for good or for ill, without any change in the words of the Constitution. We fear that as Chief Justice, Justice Mogoeng will fail to build on the enormous efforts that have been made in South Africa to transform the lives of those subordinated and marginalized under apartheid. In particular, recent reports about Justice Mogoeng’s judgments in cases involving violence against women and the rights of sexual minorities raise concerns about his commitment to the values the Constitutional Court till now has protected under South Africa’s Constitution.

Is it a response to these concerns to say that this appointment is part of the transformation of the South African judiciary? We agree that South Africa's judiciary is, like South Africa itself, engaged in a complex and vital process of transformation. Moreover, the JSC has a special responsibility to further that transformative process. But this is not the issue here. We are especially concerned that President Zuma has made this decision while overlooking other jurists who not only have more substantial judicial experience than Justice Mogoeng, but have also themselves played important roles in South Africa's transition to democracy, and who fully embrace the transformative vision of the Constitution, including the current Deputy-Chief Justice Moseneke, who has served two Chief Justices.

We urge the members of the Judicial Services Commission to consider our perspectives even though we are located in the USA and do not live in South Africa. We may be far away physically but we feel a deep connection to constitutional developments in South Africa.

We respectfully submit these perspectives and thank you for your consideration.

Sincerely

Associate Dean Penelope Andrews, City University of New York School of Law

Professor Taunya Banks, Jacob A. France Professor of Equality Jurisprudence, University of Maryland  Francis King Carey School of Law 

Associate Dean Stephen Ellmann, New York Law School

Associate Dean James Gathii, Governor George E. Pataki Professor of International and Commercial Law, Albany Law School

Professor Erika George, S.J. Quinney College of Law, University of Utah

Professor Mark S. Kende, James Madison Chair in Constitutional Law, Drake Law School

Professor Karl Klare, George J. and Kathleen Waters Matthews Distinguished University Professor, Northeastern University School of Law

Dean Makau Mutua, SUNY Distinguished Professor and Floyd H. & Hilda L. Hurst Faculty Scholar, Buffalo Law School

Distinguished Professor Ruthann Robson, City University of New York School of Law

Professor Kendall Thomas, Nash Professor of Law, Columbia Law School

Professor Lucy Williams, Northeastern University School of Law

[Institutions listed for identity purposes only]

A very important question about Harry Potter

Spoiler alert: this post contains plot details from the last Harry Potter film and the final Harry Potter volume!

So after I saw the final Harry Potter film (Harry Potter and the Deathly Hallows Part 2), I went back to the text -- that is, the book. There are a bunch of differences. For instance:

In the book, Harry is looking for the diadem of Rowena Ravenclaw, which no person living has seen, and he has the idea of speaking to someone not living -- namely, a ghost. That idea belongs to Luna in the movie.

In the book, when Harry, Ron & Hermione need to escape from Gringott's, it's Harry who has the idea of grabbing on to a dragon to get them out of there. In the movie, Hermione has this bright idea.

In the book, Ron & Hermione tell Harry about their getting into the Chamber of Secrets to acquire basilisk fangs (for destroying the horcruxes in which Voldemort has secreted parts of his soul); Ron says he remembered, more or less, the words in Parceltongue -- snake language -- that Harry ad uttered when he got into the chamber some volumes back. In the movie, we actually see Ron & Hermione accomplish this, and the action comes complete with some sexually-charged banter that's part of the build-up of their becoming, beyond any doubt, an item.

All of these changes make Harry not quite so much the focus, and bring our attention to other characters in the story. On the other hand, in the movie the final fight between Harry and Voldemort seems to feature just the two of them, while in the book their duel takes place at the climax of, and in the same place as, the climactic battle in which everyone is involved. So in this respect the staging is more Harry-centric.

So what are we to make of these changes?

One answer is that there is a law of conservation of Harry: if his role declines in three smallish places, it must increase to an equal extent in one prolonged, crucial scene.

A second is that there are at least two ways to tell the story that are equally correct. And if two, why not three or more? The varying details of individual tellings still converge into a single fundamental narrative, the true essence of Harry Potter.

A third is that there is no single Harry Potter story. I said that I went back to the text, meaning the book, but who is to say that the book is the text? The movie is a text too. Of course Hollywood routinely distorts the texts of the books it turns into films, but here, as it happens, J.K. Rowling is both the author of the books and a co-producer of the movie. So she is, in some sense, a creator of both. If the true Harry Potter story is the story she created, she has created it twice, and in somewhat different forms. As poets sometimes rewrite their own poems years after their initial publication, so J.K. Rowling has revisited her own story. There are, therefore, at least two authoritative versions of the Harry Potter canon.

A fourth is that there is, after all, one and only true Harry Potter story: the book. When J.K. Rowling authorized variations from the book in the movie, she wasn't creating another authoritative version. Rather, she was just like all the rest of us as we encounter her books: she was interpreting them. J.K. Rowling had no more, and no less, license to retell the Harry Potter story than we do (except under copyright law), and her film reading of her own book is only an interpretation of the true text.

All of these arguments probably have analogies in biblical studies or constitutional law -- but I won't pursue them! The movie's fun, just as the book was -- and I hope this post doesn't spoil any of it for you.

Once more with feeling: who exactly are we?

One more note (for now) on this topic, the subject of my posts yesterday and the day before.

There's now experimental evidence that we actually make certain decisions slightly before we become aware of having done so -- the circuits for taking action begin to fire before we report deciding. One question such evidence raises is about the actual function of the conscious mind; is it just the brake on ill-considered choices by other parts of our brains, or is it instead the rationalizer of them ( to persuade ourselves or others of the rightness of what we've already done), or does it come into play, perhaps, for some more complex set of decisions whose nature isn't captured by the experimental reports? But for now I'm not concerned with the question of what the point of consciousness is.

Rather, what's interesting about this evidence, in the context of the question of who exactly we are, is that it indicates that some part of us besides our conscious minds makes some of our decisions. Presumably that part of us also thinks about those decisions, in some way or other evaluating the pluses and minuses of possible courses of action. Perhaps this part of us thinks in very primitive ways, but it thinks. (Reflexes may not be examples of "thought," but my impression is that the decisions I'm focusing on are not so instantaneous as to be reflexive.) And "we" don't have direct access to those thoughts, until they emerge in the form of an already-made decision.

Perhaps these masked thoughts are available to us through dreams or psychoanalysis or both. But at the least it seems to be the case that anyone who has not achieved such access is operating partly in the dark about his or her own self. And it may be that even when we achieve greater (perhaps never complete?) access to our own thoughts and feelings, what we find is not that we are in fact a single coherent person after all -- just now visible at last -- but something more like a core personality and a periphery, made up of routines (emotions, thoughts, reaction paths) that actually aren't integrally connected to the rest of ourselves.

It's often said that we aspire to wholeness, and that age helps us to achieve this. But the corollary of these propositions is that for many of us, or for all of us in some respects, we are not in fact whole. "We" -- that is, single fully organized "I's" -- don't quite exist.

Who are we again?

If it's unclear whether each of us is made up of cells of more than one species right now (the subject of my last post), it turns out that it's also unclear how many species each of us is made up of as a matter of genetics. In an article ("Annals of Evolution: Sleeping with the Enemy") in the August 15-22, 2011 New Yorker, Elizabeth Kolbert reports that it now appears that all humans except those whose ancestors never left Africa interbred with the Neanderthals they encountered as they (the humans) spread out, with the result that "all non-Africans, from the New Guineans to the French to the Han Chinese, carry somewhere between one and four per cent Neanderthal DNA" (page 71).

From this we learn two things. First, it is possible, in fact typical, for human beings to have within them DNA from another species. Does that make these human beings not human? Obviously not; these DNA-borrowing humans are most of the humans there are. (Whether the Neanderthals should be described as "non-human," by the way, is itself part of what's at issue -- what's the line between humans and non-humans? But as I understand it, even if Neanderthals are humans they're not our particular species of humans, homo sapiens.)

On the other hand, does the lack of this admixture of another species' DNA make someone not actually a human in the sense we should today understand the term? Again, clearly not. Hundreds of millions of members of our species don't have any Neanderthal DNA.

Matters seem likely to grow more complex -- that is, it seems likely that we will find more of these borrowings from other species. Kolbert reports the recent discovery of another non-homo sapiens species, the Denisovans (named for the cave in which a finger bone from the species was found) -- and it turns out that one group of modern humans, the New Guineans, share "up to six per cent Denisovan DNA" (page 74). Presumably this six per cent is in addition to their 1 - 4 % of Neanderthal DNA. And who knows who else we interbred with? As Kolbert emphasizes, it appears that we routinely interbred with those we were exterminating. (Did we exterminate the Neanderthals deliberately, or just as a byproduct of taking the fruit of the land away from them? We don't know. But it's hard not to think that the circumstances of our "borrowing" of DNA were very unpleasant.)

So it is quite possible for members of our own species to carry within them DNA from one, two, perhaps more other, closely related species. And different members of our species carry different mixes of DNA from these other species. Kolbert's article focuses on the search for whatever it may be that makes us distinctively human -- the genes that we have to have, and that those other species lacked. That's a useful search, but the fact remains that even if "we" are the beings who share this as yet unidentified characteristic, there are many things that we don't share with each other, and do share, apparently, with the members of other species, long extinct.

One more point: Suppose there is some genetic essence of humanity that distinguishes us from our close relatives -- the Neanderthals and Denisovans of the past, or the clearly not-human, but very smart, chimpanzees of the present. But once we've identified this essential spark of humanity, what about all the inessential details? Would genetically green hair take someone out of the human race, if he or she held the human spark? That seems implausible. What about webbed feet? Again, that change by itself doesn't seem to make a human being inhuman. But what's the boundary? It's clearly not genetic identity; after all, as Kolbert notes (at 72), there's a lot of genetic variation between members of our species (presumably even leaving aside the heritage of borrowings from other species by some but not all of our ancestors).

In short, it seems as though the definition of human is going to turn out to be an act of will rather than a fact of biology.

Who are we anyway?

According to an article posted on the N.Y. Times website today (George Johnson, "Cancer's Secrets Come Into Sharper Focus," August 15, 2011):

As they look beyond the genome, cancer researchers are also awakening to the fact that some 90 percent of the protein-encoding cells in our body are microbes. We evolved with them in a symbiotic relationship, which raises the question of just who is occupying whom.

“We are massively outnumbered,” said Jeremy K. Nicholson, chairman of biological chemistry and head of the department of surgery and cancer at Imperial College London. Altogether, he said, 99 percent of the functional genes in the body are microbial.

It seems to me that this report raises some question about just who "we" are. I admit I'm not at all expert on any of this, so what I'm saying here is frank speculation. In particular, I'm not sure what portion of human body cells are not protein-encoding, but one possibility is that all human body cells do this, so that what these researchers have found is that most of the cells inside our body are not human cells. If some human cells aren't protein-encoding, that would change the percentage of all cells inside us that are human -- but that would alter the point I'm making only in terms of percentages.

If, again, most cells inside us aren't human, and yet they are integral to us, and part of our daily operations, are they part of us? Suppose, as the article also suggests, that the human cells and the microbial ones may be in chemical communication, and this communication is integral (in some way we don't yet understand well at all) to our daily functioning. Should we say these nonhuman cells are no more "us" than inanimate oxygen or water molecules? But we are made up of inanimate molecules, rendered part of animate beings; the molecules are us. Are we equally made up of other animate beings? I've often thought that it is odd that we are made up of animate cells -- our own, human cells -- that somehow don't count as beings in their own right even though they live and die. But now we're talking about being made up of other beings, independent (though tiny and obscure) beings.

This feels rather weird, but it's not inconceivable. If tremendously powerful computing machines can be created by linking multiple separate machines together, it is conceivable that powerful beings can be created by somehow corralling multiple separate beings. We're accustomed to think of "us" as unities, but perhaps that's a mistake, and we're more like "products" of combining parts.

I'm not certain whether it matters what we're made up of -- whether we as composite creatures behave differently than we would if we were single unities, or whether we have different moral obligations. But the intuitive feeling I have (or "I" have) is that the fuzzier we are as beings, the more we should resist any simple prescriptions about what we must be or do. Even if that's not true, it's hard not to wonder who we are -- and I expect I'll be saying (speculating) more about this little matter in future posts.

The Constitutional Court and the (relative) permanence of the Constitution

The Constitutional Court's decision in the Justice Alliance of South Africa case is a ringing defense of judicial independence and the separation of powers, and I hope will prove to be a lasting part of the foundation of South African constitutionalism. But precisely because of its importance, it deserves not just praise but also analysis.

As I wrote in my first post on this case, the case decides both that the President lacked authority to extend the Chief Justice’s term, as he had in fact tried to do, and that Parliament could not authorize an extension of just the Chief Justice’s term. The first of these, I believe, is easier to justify than the second.

As to the first, the prospect of the President having an unguided discretion to extend the term of office of the Chief Justice was, as the constitutional Court unanimously recognized, deeply threatening to judicial independence. It was, moreover, by no means dictated by the text of the Constitution, which permits the extension of a judge's term by legislation. As quoted in the case, section 176(1) of the Constitution provides:

A Constitutional Court judge holds office for a non-renewable term of 12 years, or until he or she attains the age of 70, whichever occurs first, except where an Act of Parliament extends the term of office of a Constitutional Court judge.

Obviously the discretionary choice of the President is not itself an “Act of Parliament,” but Parliament had legislated, to authorize the President to ask the Chief Justice to stay on. That delegation (as the Constitutional Court rightly termed it) was not necessarily unconstitutional. Like the US constitution, South Africa's (the Constitutional Court explains) permits considerable delegation of authority to the Executive to carry out Parliament's directions. But it is reasonable to say that some crucial powers and duties cannot be delegated (though it has been about 80 years since the US Supreme Court found a breach of our so-called "non-delegation doctrine"), and reasonable as well to view the extension of the term of office of the country’s top judicial officer, the Chief Justice, as one of them.

But the second question, whether Parliament could choose to extend just the Chief Justice's term, seems to me a closer call. Parliament hadn't done that yet (it had authorized the President to do it, but that statute fell for the reasons because of the delegation problem just discussed), and so in the US this question likely wouldn't have been ruled on. But such legislation was before Parliament (paragraph 16), and the government asked the court to determine whether it would be within Parliament's constitutional power (paragraph 70). The court took up the issue, and ruled that the Constitution simply did not authorize any extension of judicial terms that treated the Chief Justice differently from the other members of the Constitutional Court.

There were strong separation of powers arguments in favor of this conclusion too. But the relevant constitutional text offered less support. As quoted above, it explicitly provided for “an Act of Parliament extend[ing] the term of office of a Constitutional Court judge.”

Seven justices concluded that this language authorized no distinction between a Chief Justice (or Deputy Chief Justice) and other justices of the Court. (Three others believed parliament could make such a differentiation, but that the record didn't justify its having done so here (paragraphs 95 – 96); I'm not sure the record was sufficient to rule on justification if that was the issue -- but I won't pursue this minority rationale further here.)

The majority justices argue that the Chief Justice is, as a member of the Court, indistinguishable from the other justices -- so that no constitutionally relevant basis for special treatment can exist. This is a somewhat problematic argument. The Chief Justice clearly has administrative responsibilities as head of South Africa's judiciary, and may have “to represent the judiciary and to act on its behalf in dealings with the other arms of government” (paragraph 78), all responsibilities that the regular members of the court don't share. He or she may also have some internal authority in the day-to-day life of the Court; the judgment doesn't speak explicitly to this possibility. In any event, the judgment itself says that the chief justice is "primus inter pares" (first among equals) (paragraph 82), and that somewhat paradoxical phrase itself suggests there is some difference between the Chief justice and the other judges.

So why couldn't Parliament act on that difference? The court's answer is that the constitution must be interpreted "restrictively," so as to protect the separation of powers. (Paragraph 67) Because the power to single out just the Chief Justice for extension risks compromising his or her actual or apparent independence, the constitutional authorization for extension “must …, on general principle, be construed so far as possible to minimize the risk that its conferral could be seen as impairing the precious-won institutional attribute of impartiality and the public confidence that goes with it.” (Paragraph 75).

But what can Parliament do to change this separation of powers structure? It appears that Parliament thought that its 2001 amendment of section 176(1) (which, as the Court explains at paragraph 2, added the language about extension of terms in the text as quoted above) did give it the discretion to enact legislation treating the chief justice differently, but as I noted in my previous post the court says that what Parliament thought its amendment meant isn't the issue. (Paragraph 60) It seems to follow that Parliament can only amend the constitution in a way that weakens the separation of powers if it does so with a clarity that judicial interpreters cannot reasonably ignore.

This is not an assertion that the Constitution is unamendable -- a beguiling but undemocratic doctrine. Rather, the Court's position, I believe, is that the constitution as a whole carries a meaning that cannot be shifted easily -- and that the judiciary is specially responsible for discerning.

It seems to me that it is indeed a crucial part of constitutionalism that the meaning of the constitution must be more than simply a translation of the latest public opinion polls. Just how much more, however, can be debated. The approach the Constitutional Court has taken might not be a wise doctrine at all in a nation such as the U.S., where changes in the constitutional text are few and far between, and perhaps should get correspondingly greater weight when they do occur. But the American constitutional problem in a sense is that our text is too permanent – hence the constant struggles over whether and how to adapt it to modern circumstances and issues. In South Africa, by contrast, the ANC’s electoral strength is still very great, and the barriers to constitutional amendment (though real) are in general considerably less severe than those of the U.S. constitution. Amendments are quite possible and have been quite frequent in the country’s first decades of constitutionalism.

Moreover, South Africa does not yet have two hundred years of constitutional history to help shield its constitutional guarantees from dilution. No one ever knows whether a constitutional order will survive and flourish, but (as others have observed) in a new constitutional state the uncertainty is probably more acute than in a more established setting. The task of establishing relative permanence is a key South African constitutional problem, and the Constitutional Court here has attempted to meet it.

It seems quite fitting, in the end, that in a case about the independence of the judiciary the Constitutional Court has insisted as well on the strength of the overarching spirit of the South African constitution. Only time will tell whether the Court’s stance secures its position, and the constitution it guards, against political intrusion or makes both even more of a target for such intrusion than they might otherwise have been. But we should admire the effort and hope for its success.

South Africa's Constitutional Court defends the rule of law

Last Friday, July 29, 2011, the Constitutional Court of South Africa held in the Justice Alliance of South Africa case that the extension of the term of its own Chief Justice was unconstitutional. Even before the Court's decision, the Chief Justice had announced his own decision to rescind his acceptance of the extension -- with the result that he will retire at the end of the day on August 14.

The Court made three critical decisions:

(1) That although the Constitution permitted Parliament to extend a Constitution Court judge's term by legislation, that legislation could not leave it up to the President to decide whether or not to make the extension as an exercise of unfettered executive discretion -- as the statute under which President Jacob Zuma had acted did;

(2) That even if Parliament itself had made the decision to extend the term, it could not single out a single judge -- even the Chief Justice -- for an extension, as the statute in question also did, but instead had to exercise its legislative authority in a way that could apply to all members of the Constitutional Court; and

(3) That the asserted need to keep the present Chief Justice in office did not, under all the circumstances, justify the Court's suspending its order declaring that the extension was unconstitutional and invalid in order to give Parliament time to fix the problem by passing new legislation.

This is an important, and poignant, decision. One must feel some sorrow for Chief Justice Ngcobo, an admired jurist with a long record of distinguished service, who could have prevented the case from arising by declining the President's offer of an extension, but who wound up resigning in the midst of litigation in which he was a named respondent (though he took no part in the case). No party impugned his integrity, but this was surely a painful way to conclude his judicial career.

At the same time, it is quite clear that President Zuma brought this constitutional crisis on himself. When the previous Chief Justice, Pius Langa, resigned, Zuma could have appointed Deputy Chief Justice Moseneke, another admired jurist (and, I'm happy to say, a friend of mine), as Chief Justice -- as Deputy Chief Justice Langa had been appointed Chief Justice after the resignation of his predecessor, Chief Justice Arthur Chaskalson. Zuma chose to pass over Moseneke, a decision that he had the constitutional power to make, but that also seemed a direct result of the suspicion of the African National Congress, Zuma's party, that Moseneke might prove too independent. In South Africa, however, the justices of the Constitutional Court do not serve for life, but rather for a limited number of years, and Ngcobo was already nearing the end of that term when he became Chief Justice. So, quite soon, Zuma faced the possibility of Ngcobo's departure -- with Moseneke still on the Court. The extension Zuma proposed in response, and that Ngcobo initially accepted, would have continued Ngcobo in office for five more years.

Although the idea that a Court might rule on the constitutionality of the extension of its own Chief Justice's term may seem remarkable, it is very much in the tradition of South African constitutionalism. South African courts do not shrink from ruling on constitutional issues -- in sharp contrast to American courts, which quite often conclude that they cannot or should not resolve genuine constitutional disputes.

While it is not surprising that the Court was prepared to rule, the decision is still important and brave. The decision was a unanimous one, joined by all 10 justices sitting (Ngcobo himself naturally did not take part in the decision). It was announced in the name of "The Court" rather than attributed (as I believe the great majority of the Constitutional Court's decisions are) to a particular justice. On one point, the judgment reports (paragraphs 95 - 96) , three justices reasoned differently from their colleagues, but they are not named and the impact of the judgment as a whole is emphatically to assert the justices' unanimous rejection of the government's action. And that set the Court, perhaps more clearly than any other decision to date, against the strongly felt wishes of the President and the governing party.

The judgment eloquently explains why. Before analyzing the specifics of the particular constitutional provisions at issue, the Court emphasizes the central constitutional commitments to the separation of powers and judicial independence. (Paragraphs 20 - 40) Here, as the Court goes on to explain, what is at stake is the independence of the judiciary -- in a South Africa where the ruling party's commitment to the rule of law has seemed increasingly frayed. If the President, or Parliament, can choose to extend a single justice's term in office, then that person can be tempted by the prospect of an extension (paragraph 73), and so judicial independence can be compromised.

This fundamental point is, I think, entirely right. But it does not necessarily follow that the Court's decision is correct, because it might have been concluded that the Constitution did not protect judicial independence as fully as it could and should have. The text of the document did not in express terms rule out what Parliament and the President did; to determine the constitutionality of the statute Parliament had passed and of the action the President took under it, the Court had to interpret language that could have been read in more than one way. Essentially the Court said that the Constitution as a whole protects judicial independence from encroachment by the other branches, and so the particular section of the constitution at issue should be read in that same spirit. Again, I think that judgment is important and appropriate.

But I do want to discuss one particular detail of the Court's reasoning, with which I have more difficulty. The fact was that Parliament amended the relevant section of the Constitution at the same time that it enacted the legislation that the Court now holds unconstitutional. Parliament amended section 176(1), which specifies the term of office of members of the Constitutional Court, to add for the first time the possibility of an extension, which could occur "where an Act of Parliament extends the term of office of a Constitutional Court judge." (Paragraph 25). At the same time, Parliament enacted the statute that permitted the President to decide whether to ask the Chief Justice to agree to an extension of his term. One might say, therefore, that Parliament must have believed that its statute faithfully implemented its simultaneous amendment of the Constitution.

To this argument the Court responds (paragraph 60):

This contention cannot be supported because the fact that the two provisions were enacted at the same time is not relevant in assessing whether particular legislation is compatible with its empowering provision within the Constitution. The contention is faulty for yet another reason. It implies that the way in which Parliament understood the constitutional amendment that it approved is binding on the manner in which this Court must interpret the amendment. It cannot be so. Even if it were possible to arrive at this result, we are obliged to determine objectively the meaning of the constitutional provision irrespective of the meaning as perceived by Parliament.

As a matter of constitutional theory, I am uneasy with interpretation that rests on the view that the words of the text have an objective meaning that is wholly independent of the meaning that those who enacted the words believed they carried. Perhaps the Constitutional Court has not quite adopted that view. But in any case this is a debatable point of theory. What may be most striking is how sharply the Court has chosen to differentiate its constitutional role from that of Parliament. The force of the language is reminiscent of the United States Supreme Court's emphatic assertion of judicial supremacy in the desegregation case of Cooper v. Aaron (1958). There the Supreme Court rejected an argument that Arkansas state officials were not bound by the earlier case of Brown v. Board of Education (1954), and cited the foundational case of Marbury v. Madison (1803). "This decision," said the Court,

declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

That language reflected our Supreme Court's sense that it was locked in a crucial struggle, in which it had to declare its authority unmistakably. Perhaps the language the Constitutional Court of South Africa used reflects just the particulars of the legal problem before it, but the intensity of the Court's words seems to hint that the Constitutional Court has arrived at a conclusion like the one reached by the U.S. Supreme Court in Cooper v. Aaron. It is good that the Court is prepared to speak so firmly for its constitutional vision; it is sad indeed that it has had to do so.