Saturday, August 6, 2011

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.

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