SUBMISSION BY IDASA: CONSTITUTION OF THE REPUBLIC OF SOUTH
AFRICA AMENDMENT BILL, 2001.
Introduction:
s 176 of the Constitution of the Republic of South Africa, 1996 ("The
Constitution") dealing with the terms of office and remuneration of judges states
that :
" (1) A Constitutional Court judge is appointed for a non-renewable term of 12
years, but must retire at the age of 70.
(2) Other judges hold office until they are discharged from active service in terms
of an Act of Parliament.
(3) The salaries, allowance and benefits of judges may not be reduced. "
The amendment of this section would enable the Legislature to regulate the term
of office and retirement age of Constitutional Court judges by means of an Act of
Parliament. It is understood that matters relating to tenure, remuneration of
judges and conditions of service of Constitutional Court judges will be
incorporated into the Judges' Remuneration and Conditions of Employment Act
88 of 1989. It would appear that the aim of the amendment is the equalisation of
all judges. While Parliament has the constitutional authority to initiate and pass
legislation or amend the Constitution, Parliament also has a Constitutional duty to
assist the judiciary in fulfilling its role. In terms of s 165 (4) of the Constitution,
Parliament must assist and protect the courts to ensure the independence,
impartiality, dignity, accessibility and effectiveness of the courts. The proposal to
amend a provision of the Constitution that offers constitutional protection to
Constitutional Court judges must be justified by the legislature in terms of s 165
(4).
A key question then is, whether this amendment will promote an independent
Constitutional Court or not?
IDASA submits that locating the power to determine the tenure of judges in the
hands of the Legislature is problematic and undesirable and will not advance the
independence of the Constitutional Court. We will provide reasons for the
undesirability of such an Act of Parliament further in the submission.
Independence of the judiciary
The security of tenure which judges enjoy is inextricably linked to the
independence of the judiciary from other spheres of government. It creates a
space which can be effectively used by judges and lawyers to advance social
justice. If the judiciary acts as an extension of the executive it is not a judiciary
in the proper sense at all. Security of tenure includes aspects such as
remuneration and security from arbitrary removal from office.
Loss of independence of the judiciary can occur in a variety of circumstances.
By manipulating the appointment of judges, the executive can create a judicial
culture of extreme deference to government and policy. This may lead to a
situation where fundamental legal principles are ignored. This was clearly the
case in the apartheid era. The apartheid government through parliamentary
sovereignty effectively controlled the work of judges. The lack of independence
of the judiciary exacerbated the overall failure of the credibility of the justice
system.
In South Africa today, judicial authority enjoys constitutional protection. The
growth of constitutional democracy and the rule of law, protected from legislative
invasion, has substantially enhanced judicial independence and authority. This
independence fulfills s2 of the Constitution which states that: "the Constitution is
the supreme law of the Republic..". As Chief Justice Mohammed said in The
Speaker of the National Assembly v De Lille and another @ 14H: "..It (the
Constitution) is supreme- not Parliament."
Why is the amendment problematic?
While it is not certain what regulatory choices Parliament will subsequently make
and what the exact content of the proposed legislation will be, one could
envisage that the tenure of Constitutional Court judges could be either extended
or shortened. It is vital for the life of South Africa's constitutional democracy that
the Constitutional Court asserts its powers independently. The Constitutional
Court wields a great deal of power given that it has the final word on the
interpretation and application of the Constitution. This has not only political but
also social consequences. There is constant conflict in the position which the
Court holds and the fact that it is also reliant on the executive and legislative
spheres of government to enforce its judgements on the one hand and to protect
its independence on the other. The Constitutional Court needs to carefully
negotiate its way through conflicts which could elicit direct attacks on the
independence of the judiciary, the tenure of judges or attempts to restructure the
Court's jurisdiction which would have the effect of limiting the institution's power.
IDASA is concerned that an attempt to remove tenure from the ambit of the
Constitution may well lead to a compromise of the independence of the judiciary,
should judges assert themselves too openly and hand down "unpopular
judgements". If Constitutional Court judges are placed in such a vulnerable
position, there is a real possibility of Constitutional jurisprudence being
weakened. This in turn may have the effect of significantly diminishing the
capacity of the Constitutional Court to discharge its functions in terms of the
Constitution. Any changes to s 176 must result in a secure framework within
which judges may exercise judicial authority.
Apart from possibly compromising the independence of the Constitutional Court,
as mentioned above, the amendment is problematic for a variety of other
reasons:
1. It represents a "fundamental departure" from the negotiations at Kempton
Park (which produced the Interim Constitution) and those held subsequently in
the Constitutional Assembly. The clause attracted a great deal of debate at the
time and we would submit that a similar rigorous debate ought to be taking place
at present. It was concluded that limited tenure would ensure that Constitutional
jurisprudence evolves and that Constitutional Court judges, through a process
of renewal, would be more attuned to the changes and needs of the society in
which the Court operates. The choice to protect the term of office and retirement
age of Constitutional Court judges constitutionally and not in terms of an Act of
Parliament was a conscious one aimed at ensuring the maximum level of
protection for judicial authority.
The Interim Constitution and the 1996 Constitution represent an attempt to
reintroduce and reinforce the concept of judicial independence in a necessary
step towards re-establishing the credibility of the judiciary. This is also
articulated in the mechanism established to deal with the appointment of judges,
the Judicial services Commission (JSC).
S 86 of the Interim Constitution provided that the judiciary shall be independent
and subject to the Constitution and the law. In fact, in terms of s99 (1) of the
Interim Constitution, the term of Constitutional Court judges was seven (7) years.
The outcome of further deliberations at the multi-party talks at Kempton Park and
the Constitutional Assembly, which decided the final Constitution in 1996, was s
176 as it stands at present. Both versions of the Constitution specifically placed
the Constitutional Court judges in an elevated position and afforded them special
protection. The Final Constitution however changed the position slightly by
including the non-renewable 12 year tenure, retiring at 70. It is important that we
do not lose sight of the debates and aims which surrounded and infused the
constitution-making process.
The Constitution represents the values South Africans agreed to adopt and the
manner in which our society will give expression to those values. Any change to
such a document needs to be carefully studied and thought through. It is
therefore particularly disconcerting that this amendment has already been
dubbed the "Chaskalson amendment" in the print and electronic media. It is
hoped that the media reports are inaccurate as it would be a misguided step to
alter the Constitution to accommodate a single individual, whoever he/she may
be. It would be our opinion that the country needs to draw on the pool -no matter
how big or small- of legal experience and competence and appoint a new Chief
Justice as speedily as possible. Currently new judges are being utilized as Acting
Judges by the Constitutional Court. During their tenure, these judges are
required to write judgements. This is a pro-active and developmental step by the
Constitutional Court assisting in the training of potential Constitutional Court
judges. The proposed amendment, while providing interim relief in terms of filling
a vacant position, will not solve the long-term problem of an able successor to
Chief Justice Mohammed. There needs to be a constant effort to nurture and
train new judges to be in a position to effectively take up future positions at the
Constitutional Court.
Separately, IDASA welcomes the proposed amendment which seeks to meld the
position of Chief Justice with that of President of the Constitutional Court. This
proposal is particularly reasonable in light of the Constitutional Court's pre-
eminence.
2. We have submitted above that the probable consequence of this amendment
will be the extension of a judge's tenure. [this assumes that the Judges'
Remuneration and Conditions of Employment Act 88 of 1989 is extended so as
to apply to Constitutional Court judges and place all judges in a similar position
regarding tenure, remuneration and other conditions of employment.
Constitutional Court judges would, like their High Court and Supreme Court of
Appeal counter-parts enjoy tenure for life.]
However, once the decision has been made to remove tenure from being
governed by the Constitution, security of tenure, in fact becomes weaker for
judges. It would allow the legislature to amend the section with ease and at any
given time. A situation could arise in which judges during their term have handed
down judgements which are unfavourable to the State. This could lead to the Act
being amended in order to shorten the terms of judges of a Constitutional Court
which becomes too independent-minded. An Act of Parliament, is not only
relatively easy to amend, but could also be the subject of lobbying and political
compromise. We would deem it unhealthy for the tenure of Constitutional Court
judges to be subject to such overt political lobbying and, at times, expedience.
The role of the Constitutional Court
What makes these Constitutional Court judges special though and why should
they be privileged above their colleagues in the lower courts whose tenure is
governed by legislation? This was one of the questions debated within the
Constitutional Assembly. One can only conclude that this is a special court
placed as it is at the apex of legal life in South Africa as the ultimate interpreter of
rights. The Constitutional Court is the guardian of our constitutional democracy
having all its powers originate from the foundations of constitutional supremacy.
It is a Court which wields a tremendous amount of power and as a result its
judges have a unique responsibility. The meaning of the new political and judicial
order is intrinsically linked to the work of the Constitutional Court. It is for this
reason that the status of Constitutional Court judges was elevated: a decision,
which was taken when it was decided that the Constitutional Court would be the
final arbiter on Constitutional matters. The choice to protect the term of office and
retirement age of Constitutional Court judges constitutionally sought to ensure
that judicial authority would never again be controlled as it had been before. It
was a significant step away from the past. It would be unwise to reverse this
decision 8 years later.
3. The amendment will be out of kilter with trends in other countries around the
world where the average term is in the region of 9 or 12 years. In Germany, for
instance, Constitutional Court judges serve for a maximum of 12 years and must
retire at 68. In Japan, a Constitutional Court judge may serve a non-renewable
term of 9 years and must retire at 70. There is, in addition only one European
country, which allows renewable tenure for Constitutional Court judges i.e.
Czhekoslovakia.
A notable exception is the United States of America, where Constitutional Court
judges are appointed for life. [It is recognised that the US Supreme Court differs
from ours in that it is the final arbiter on all issues, not only constitutional
matters.] The system while assuring security of tenure, however, is open to
criticism as there has been a tendency to politicise the appointments of judges to
the highest court even more. It is said, and we would agree, that this has a
negative effect as it often serves to entrench judicial incompetence and tends to
produce judicial autocracy over which effective control is difficult. Presidents are
often anxious to promote their own constitutional philosophy and political ideas
and there is at present a situation in the USA where 4 Constitutional Court seats
will soon become vacant. (It is incumbent on a particular judge to decide
whether he/she is ready to retire or not.) The element of political inclination in
this is that a particular constitutional philosophy held by the administration of the
day will be furthered and cemented for an unforeseen period of time. Many
Presidents have in the past appointed very young judges so that some judges
have served for extended periods of 30 years and longer. This also may lead to
an unhealthy situation in which constitutional jurisprudence stagnates. In South
Africa, which is a fledgling democracy, we would consider it important that there
is a healthy continuity in the court, but also that there are fresh ideas and a
development of the jurisprudence in a way that stays abreast of jurisprudential
trends.
4. It has been argued that the proposed amendment would prevent a situation
where younger judges of the Constitutional Court are financially insecure after 12
years on the bench. We would argue however that their professional skills can
be put to effective use whether it be in academia , business, public service or
other pursuits. In addition, Constitutional Court judges are paid a gratuity at the
end of their tenure. If there are concerns regarding Constitutional Court judges'
remuneration or pensions at retirement, these should be addressed in terms of
amendments to the Judges' remuneration and conditions of employment Act 88
of 1989 mentioned above. Concerns around these issues should not result in
amending the Constitution. Should the executive wish to extend tenure at all, s
176 should be amended to reflect this, however we would submit that this should
be extended not to life tenure but to a period of 15 years. This would provide the
current bench with continuity for a further period, although limited, while at the
same time ensuring the constitutional dynamism and evolution which the drafters
of the Constitution clearly envisaged.
5. Finally, we are concerned at the apparent haste with which these
Constitutional amendments have been introduced, given their significance and
that it is part of the first fundamental changes to the Constitution. Any change to
a country's Constitution needs to be considered carefully and with the maximum
amount of public debate and consultation. A proposal to amend a country's
Constitution activates a very serious legislative and political process. This is the
reason why the Constitution sets out more stringent requirements for amending
the Constitution than for amending an Act of Parliament. (cf s74) While there
has been formal consultation, we would have preferred to witness a wider
consultation between the Department of Justice, the Legislature, academics, the
legal profession and civil society organizations. This would have enabled the
issues to be properly ventilated.
We trust that our submission will be received favourably by your Committee.
SUBMITTED BY:
The Institute for Democracy in South Africa (Idasa)
6 Spin Street
Cape Town
8000
Corder, Hugh. Ed. (1989) Democracy and the judiciary Cape Town, Idasa
Heinz Klug: Constituting democracy : Law, Globalism and South Africa's
Political Reconstruction (2000) Cambridge University Press
Professor Hugh Corder quoted in Wyndham Hartley: "Judges- for- life plan
opposed", Business Day, 13 August 2001
Hassen Ebrahim: The soul of a nation: constitution-making in South Africa
(1998) Oxford University Press
www.parliament.gov.za