Road to constitutional crisis

In his recent interview with The Star, President Jacob Zuma intimated that there was a need to “review the Constitutional Court’s powers”. He reiterated his previous view that judges were not “special people”, but fallible human beings.

He explained: “We don’t want to review the Constitutional Court, we want to review its powers. It is after experience that some of its decisions are not decisions that every other judge in the Constitutional Court agrees with.”

He questioned the logic of split decisions among judges, saying: “How could you say that the judgment is absolutely correct when judges have different views about it?”

There is manifest conceptual confusion with his statement that what is required is not a review the Concourt, but a review of its powers, since the two issues are inseparable.

The practice of split decisions is not new and is part of our long-established judicial practice. It is also used by the most eminent of courts, such as the US Supreme Court and the House of Lords (now the UK Supreme Court).

What is clear is that any change to the powers of the Concourt, involving, among others, split decisions, would require a major and substantive constitutional amendment, because the process of judicial review provided for in the constitution would be changed.

In constitutional terms, SA has a rigid constitution, since special procedures, set out in section 74, are required for amendment of the 1996 constitution, thereby establishing the supremacy of the constitution, which is declared in section 2.

Amendments to the constitution can be classified into different categories depending on the order of the degree of rigidity involved.

First, section 1, which defines the seminal values on which the constitution is premised, and section 74 (1) of the constitution, the entrenching provision itself, may only be amended by a bill passed by the National Assembly with the supporting vote of at least 75 percent of its members together with the support of at least six of the provinces in the National Council of Provinces (NCOP).

Next, chapter 2 of the constitution, which embodies the Bill of Rights, may be amended by a bill passed by the National Assembly supported by a vote of at least two-thirds of its members together with the support of at least six of the provinces in the NCOP.

All other provisions of the constitution not covered by the two categories referred to above may be amended merely by a two-thirds majority in the National Assembly.

It can be convincingly argued that changing the powers of the Concourt would have an impact on the values set out in section 2, such as the supremacy of the constitution and the rule of law, which requires a vote of at least three-quarters of its members, together with the support of at least six of the provinces in the NCOP, and not merely a two-thirds (66.3 percent) majority in the National Assembly.

At present, the ANC does not have a two-thirds majority in the National Assembly, but even if it were to muster a 75 percent majority, there is a further possible obstacle to changing the constitution relating to judicial review.

There is a possibility that the basic structure doctrine could be invoked. Indian jurisprudence pioneered this doctrine, according to which the constitution of India may be interpreted to prohibit entirely certain substantive limitations on the power of the legislature to amend it, despite the fact that article 368 of the said constitution appears to confer an unlimited power of amendment on the legislature.

According to this doctrine the question is asked whether a process of radical restructuring of the constitution might not qualify as an “amendment” at all. In the famous Indian case of Kesavananda Bharati versus State of Kerala, the Indian Supreme Court held that the amending power conferred by article 368 did not extend to any amendment that would alter the basic structure of the constitution.

Although the basic structure doctrine is an extremely controversial one, and there are cogent arguments for and against it, it has been referred to in SA cases.

For example, in Premier of KwaZulu-Natal versus President of the Republic of SA, the Concourt left open the possibility that it would incorporate this doctrine into our law. In this case Justice DP Mahomed observed that this profound and indeed potentially revolutionary doctrine has engaged the Indian Supreme Court for some years.

Although it was not necessary for Justice Mahomed to pursue this line of argument and thinking, he observed further that the Indian Supreme Court has consequently held that the supremacy of the constitution, the principle of equality, the independence of the judiciary and judicial review are in effect cast in stone and therefore cannot be amended at all.

In the subsequent case of The Executive Council of the Western Cape Legislature and Others versus President of the Republic, Justice Albie Sachs declared that there are certain “fundamental features of parliamentary democracy which are not spelled out in the constitution, but which are inherent in its very nature, design and purpose”.

Also, in the floor-crossing case, United Democratic Movement versus The President of the Republic of SA and Others, the Concourt referred to the basic structure doctrine.

Justice Mahomed was quoted as saying: “There is a procedure which is prescribed for amendments to the constitution and this procedure has to be followed. If that is properly done, the amendment is constitutionally unassailable. It may perhaps be that a purported amendment to the constitution, following the formal procedures prescribed by the constitution but radically restructuring and reorganising the fundamental premises of the constitution, might not qualify as ‘an amendment’ at all.”

After referring to the decisions of the Indian Supreme Court cited above, Justice Mahomed explained: “Even if there is this kind of implied limitation to what can properly be the subject matter of an amendment to our constitution, neither the impugned amendment to section 245 nor any of the other amendments to the constitution placed in issue by the applicants in the present case can conceivably fall within this category of amendments so basic to the constitution as effectively to abrogate or destroy it.”

In this regard former chief justice Arthur Chaskalson commented in the floor- crossing case that it was not necessary to address problems of amendment that would undermine democracy itself, and in effect abrogate or destroy the constitution.

From the judgment it appears that the Concourt, merely for the sake of argument assumed that the basic structure doctrine applies to our constitution.

The result of this cautious approach is that the exact status of the basic structure doctrine remains unclear, since the court did not actually hold that it applies in our constitutional law.

This will be a pertinent issue, should an amendment to the powers of the Concourt be adopted by Parliament, and then subjected to constitutional review, in which the Concourt has the final say.

Its invocation would produce a constitutional crisis of the first order, should the ANC embark on amending the constitution to abolish or abridge judicial review and the powers of the Concourt.