Who+should+wield+ultimate+power,+Mpumelelo+Mkhabela,+City+Press

City Press, 29/04/2006 18:26 - (SA)

 * Who should wield ultimate power?**

//Crossing of lines between the executive, Parliament and judges exposes serious power relations for the three institutions,//


 * writes MPUMELELO MKHABELA**

AMERICAN legal scholar Robert McKay once spoke about a judge who had difficulty in arriving at a decision. After hearing the complainant's argument in court the judge said: "He's right". Upon hearing the defence counsel, the judge observed: "She's right".

When reminded by the bailiff that both lawyers could not be right, the judge rose to the occasion stating firmly: "You're right too!"

McKay's story was an attempt to demonstrate the difficulty judges face in dealing with cases which involve "judicial review" - the decision by courts to set aside, postpone or amend legislation which has been passed by a parliament.

The difficulty arises because legislating is the exclusive domain of the legislature. Implementation is the domain of the executive. Settling of disputes about meaning and implementation of the law is for the courts, which have to abide by the Constitution.

In theory and simple terms, this is what the much-abused concept of separation of powers mean. But in practice, it is difficult not to blur the lines for example in the case where the executive is run by the same party which is the majority in a parliament.

The tension arises on whether courts are entitled to reject, amend or postpone the implementation of legislation, if approached by members of the public.

The blurring of lines between the executive and Parliament in South Africa is taken for granted since the ANC controls both. But, as it is evident, any attempt by the executive to be seen to be interfering with the judiciary often causes an uproar.

Among the many concerns which judges have raised with regard to one of the disputed bills - the 14th Constitution Amendmet Bill - is a clause on judicial review. It seeks to "prohibit any court, including the Constitutional Court, from hearing any matter dealing with the suspension of the commencement of an Act of Parliament or a Provincial Act, or make an order to such an effect". For some judges this is tantamount to making Parliament beyond reproach. It curtails the court's powers to keep the executive and Parliament "in check."

But, the question is if judges were to strike down legislation, recommending amendments or postponing its implementation wouldn't that be undermining Parliament?

This raises issues of power relation between the judiciary, executive and Parliament. Who has most power: those "elected" by the people with a two-thirds majority, or those "appointed" by the president on recommendations by a "quasi-independent" body such as the Judicial Services Commission?

A cursory reading of some of the decisions made by some judges indicate that they have adopted the style of the confused judge that McKay spoke about.

In some cases they have rejected judicial review, while in others they adopted a cautious approach. In some instances judges have made what appear to be pure political statements in their judgments.

In the same-sex case of Minister of Home Affairs and Another vs Fourie and Another, the court instructed Parliament to amend the Marriage Act within 12 months. And if Parliament did not do this, the court said, the act should be read as allowing of same-sex marriages. It was almost as though the Constitutional Court was a legislature!

Justice Kate O'Regan was even more direct, stating that the doctrine of separation of powers is an important one in the Constitution, but it cannot be used to avoid the "obligation of a court" to provide relief to litigants who successfully raise a constitutional complaint.

Then there was the case in 2003 of Minister of Home Affairs vs Eisenberg & Associates attorneys, who wanted the immigration regulations declared invalid and unlawful. Chief Justice Arthur Chaskalson said it was "open to doubt" whether the court had powers to suspend an Act of Parliament or a proclamation.

"But even if such a power exists - and I express no opinion on that issue - it would be exercised sparingly and only in the most exceptional circumstances," he said in judgment. He dismissed the case, arguing that to revert to the old immigration rules while the new ones "had" to come into operation "constituted an unjustifiable interference with the will of Parliament".

In the most famous floor-crossing case, of President of South Africa vs United Democratic Movement, the Constitutional Court made an interesting observation. The UDM had applied to suspend the implementation of the legislation. The High Court granted the suspension, pending the Constitutional Court decision.

It is now known that the UDM lost the case. One of the arguments the Constitutional Court advanced was that "it is drastic and far-reaching for any court, directly or indirectly, to suspend the commencement or operation of an Act of Parliament and especially one amending the Constitution, which is the supreme law of the land." The judges observed that the president, in the case of Parliament, and the premiers, in the case of provincial legislatures, can refer bills to the court to check their constitutionality. They stated that they have regard for Parliament and "it would not be in the interest of justice for a court to interfere with its will unless it is absolutely necessary to avoid likely irreparable harm and then only in the least intrusive manner possible."

But the judges went on to make political statements such as that floor-crossing does not make the political process any less democratic. The judges said that when MPs vote for legislation in Parliament they do consult their supporters to find out which way they should vote. In essence, the judges were telling politicians that it was not the court's duty to make them behave any more democratically. But why make such a statement?

But perhaps the latest controversial Constitutional Court judgment was the one of Matatiele residents vs the President, in which that community wanted legislation that incorporated them into the Eastern Cape overturned. They want to be in KwaZulu-Natal and they felt the views of the demarcation board, which was similar to theirs, were sidelined by Provincial and Local Government Minister Sydney Mufamadi, who pushed a bill to Parliament that would result in that community falling within the Eastern Cape boundary.

If the court had ruled in favour of the residents, elections in that area would have been postponed to re-demarcate the area. Judge Sandile Ngcobo established that KwaZulu-Natal legislature did not, as required by the constitution, hold public hearings with the Matatiele community. He said this was an important issue because it was "at the very heartland of our participatory democracy".

However, he said the court needed the benefit of debate on this before a decision can be taken. And this could not happen before the elections. He further stated: "It is not desirable to disrupt elections," but noted "the lack of candour on the part of government as to why it was regarded as appropriate to place Matatiele Municipality in the Eastern Cape."

Ngcobo gave a judgment which he described as a "holding position" (a non-judgment). But, in effect it was in favour of the government, which lacked candour. While all the judges concurred with him, the reasons that some offered, leave the impression that the court gave a reluctant judgment against the Matatiele people so that elections could go ahead. No doubt, government saw it as a victory despite its failure to submit reasons.

Judge Sachs, in his supporting explanation, was scathing about the government and its counsel for failing to explain to the court why it was necessary to relocate Matatiele.

"The stance counsel adopted boiled down to asserting that the legislature itself thought that the relocation was necessary, and involved a legislative choice, the wisdom of which is not now open to question by the court."

He said "the notion that 'government knows best, end of inquiry', might have satisfied Justice Stratford in the pre-democratic era. It is no longer compatible with democratic government based on the rule of law."

But who cares. The court has ruled against the people of Matatiele. And here that was a good justification for the court to exercise a strong judicial review. The court established here was no consultation - "the very heartland of democracy."

All these cases show judges have been inconsistent in using judicial review. But it does not make it right to restrict them from exercising it correctly on behalf of the public. Judicial review also helps us to know the political opinion of judges.


 * From: http://www.news24.com/City_Press/Features/0,,186-1696_1924541,00.html**

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