The F W de Klerk Foundation welcomes the assurances given by the Minister of Justice, Mr Jeff Radebe, that “the Constitution is an embodiment of the values that the ANC stood and fought for” and that “the ANC-led government will defend these values at all cost, including the independence of the judiciary and the rule of law which are the bedrock of our constitutional democracy”.
We also welcome the Minister’s reaffirmation that the judicial power of the Constitutional Court in striking down laws that it deems to be unconstitutional …”is a fundamental principle of our constitutional dispensation”. It agrees with former Constitutional Court Judge Kate O’Regan that these powers should be used with circumspection and within the threefold framework of legality, rationality and compliance with the bill of rights. As Judge O’Regan correctly points out “outside of this framework, it is not for courts to impede the functioning of government”.
There is thus a clear requirement on the one hand for the courts to respect the proper role of government to formulate and implement policy; and on the other for government to accept the power of the courts to strike down legislation that is illegal, irrational or does not comply with the Bill of Rights.
Neither can there be any argument with the Minister’s contention that “criticism of the (constitutional) court’s decisions is both permissible and desirable”. At the same time, the Minister should bear in mind section 165(3) of the Constitution that requires that “organs of state must …assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.”
He should, in particular, ensure that the proposed review does not offend in any way against this provision. In particular, the review should not be used to try to impose the ruling party’s particular ideology and world-view on the courts. The Minister should remember that the courts “are independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice.”
However, the Foundation does not agree with the Minister that section 16 of Schedule 6 of the Constitution – which deals purely with transitional arrangements “as soon as is practical after the new Constitution takes effect” – in any way justifies the President Zuma’s comment that a “review of the powers of the Constitutional Court is consonant with the rationalisation project mandated by the Constitution”. It is comments such as this that have given rise to what the Minister describes as “irresponsible commentary” and “fear that the ANC is hell bent on revoking the fundamental rights and freedoms that many had fought and some died for.”
We agree wholeheartedly with the Minister about the central importance of the Constitution for the future happiness and well-being of all our people. We also endorse his view regarding the transformational nature of the Constitution and the urgent need to address the continuing problem of unacceptable inequality in our society.
However, it is not our courts that are responsible for our failure to make much greater progress in eliminating inequality. Persistent inequality in our society is due primarily to unacceptable levels of unemployment; the catastrophic failure of our education system, pervasive corruption and widespread problems with service delivery.
Also, the Constitution is not solely concerned with transformation – although this is undoubtedly a key requirement. It is a balanced document that seeks to protect the fundamental rights of all South Africans and to establish a society that is based on non-racialism, non-sexism, the supremacy of the Constitution and of the rule of law. It is also committed to the establishment of a genuinely democratic system of multiparty government “to ensure accountability, responsiveness and openness.”
It is the responsibility of our courts to watch over and protect the totality of the values and rights on which our new society has been based.
FW de Klerk Foundation