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.