The Constitution not invoked to assert freedom, human dignity and the achievement of equality is bound to wither and die. . .
The Constitution, our supreme law, introduces the notion of public interest litigation under the heading “Enforcement of Rights”. Section 38 provides, in part, that anyone acting in the public interest has the right to approach a competent court, alleging that a right in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief including a declaration of rights.
When deciding “constitutional matters”, the courts “must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency; and may make an order which is just and equitable”. This provision dovetails with the founding values of the supremacy of the Constitution and the rule of law, and the notion that law or conduct inconsistent with the Constitution is invalid. The same section proclaims that obligations imposed by the Constitution must be fulfilled.
Our courts are “independent and subject only to the Constitution and the law, which they must apply impartially and without fear, favour or prejudice”. An order or decision issued by a court binds all persons to whom, and organs of state to which, it applies. To avoid any possible doubt about the matters sketched above, the diligent performance of obligations under the Constitution is dealt with in a general provision near the end of the text, with the following rule: “All constitutional obligations must be performed diligently and without delay.”
This general framework created by the founders of our not-so-new constitutional order has spawned a new category of litigation that was virtually unknown before 1994: public-interest litigation or “lawfare” — a made-up term that combines welfare and warfare with the law. This has become a speciality of some lawyers and the focus of attention of some political parties, civil society organisations and individuals who are prepared to seek the assistance of the courts in relation to law or conduct that they perceive to be inconsistent with the Constitution or that “infringes or threatens” the rights guaranteed in the Bill of Rights.
Those in positions of power, both in the government and elsewhere, who find their conduct challenged in public-interest litigation are inclined to oppose the cases launched against them and complain bitterly when they lose in court. An imagined hierarchy is invoked in the ensuing criticisms of the “counterrevolutionary” judges who are so bold as to invalidate the transient exercise of authority of the political leaders of the day. An underlying misconception is invoked: the will of the majority of voters, as expressed in the actions of those they elect, must prevail. This misconception requires judicial officers to “toe the party line” rather than objectively adjudicate the litigated objections of those who properly assail unconstitutional aspects of the laws passed by, and the conduct of, those in power.
The misconception is based upon the supposed sovereignty of Parliament. Yet South Africans, thoroughly tired of the authoritarianism of apartheid, turned their collective backs on the apartheid era order and opted for the supremacy of the Constitution and the rule of law.
It is precisely because politicians tend to avoid accountability and exactly because the past “tyranny of the majority” — actually only a majority of an enfranchised minority before 1994 — enabled politicians in government to avoid accountability, that the founders of the new order opted for a fully fledged constitutional democracy with a genuine balance of state powers between the traditional spheres of government (the executive, the legislature and the judiciary ) as well as the new Chapter 9 institutions created as “state institutions supporting constitutional democracy”.
These institutions, which are accountable to the National Assembly, strengthen our constitutional democracy and are required to be impartial and independent and “subject only to the law and the Constitution” in the exercise of their powers and the performance of their functions.
The supremacy of the Constitution and with it the rule of law mean politicians cannot do as they please, not even if the majority they represent wants them to embark on a populist programme that is inconsistent with the Constitution. In the final analysis, the Constitution means what the majority of the justices of the Constitutional Court says it means. Any law or conduct inconsistent with the Constitution is invalid and is liable to be struck down in court at the request of any public-interest litigant brave enough to speak truth to power and litigate the issue in question.
Constraining political actors, and those in positions of power in general, with the values, tenets, principles and promises of our Constitution puts people at the centre of the new order. It creates a hierarchy in which the Constitution, created by the people and voted into being by the overwhelming majority of the representatives of the people, is at the apex and rules every one of us, including all politicians from the lowliest town councilor to the president, judicial officers from district magistrates to the chief justice, and our public administration too.
All those who implement policy, and make laws, have constantly to be mindful of “passing constitutional muster” in all that they do. In this way, ordinary people are best served: accountability, openness and responsiveness to their needs are foundational to the order created in the Constitution.
Some observers of the jurisprudence of the Constitutional Court suggest that, realistically speaking, the court will not travel significantly beyond the ideology of the prevailing establishment in politics. However, the courts do not claim any hierarchical authority superior to that of the executive or legislative branches of government. Courts may, when called on to do so, review the exercise of the powers and functions of Chapter 9 institutions and “must” declare invalid law or conduct that is inconsistent with the Constitution. The courts themselves, through a complex system of appeals, are subject to the law and the Constitution, whose supremacy in the new order means everyone is subject to the overriding authority of the law.
It is the supremacy of the law that makes the new SA so much better than the old order. What the Germans call a “rechtsstaat” is the antidote to tyranny and lawlessness of all kinds. Cicero, the Roman statesman, got it right centuries ago when he argued that “we are all servants of the laws in order that we may be free”.
Plato was more foreboding: “Where the law is subject to some other authority and has none of its own, the collapse of the state, in my view, is not far off…”
The utility of public-interest litigation in the realm of politics is that it serves to keep us all free. A Constitution that is not invoked to assert freedom, human dignity and the achievement of equality before the law with the concomitant enjoyment of human rights that are supposedly guaranteed to all, but are not yet delivered to all in SA, is a Constitution that is bound to wither and die. Without bold and unqualified assertion of the fundamental values of the Constitution, the striving for any semblance of accountable governance will surely be lost.
Hats off to all public-interest litigants, opposition political parties and pesky nongovernmental organisations that continue to seek that elusive “better life for all” by resisting the powerful who stray from the constitutional path chosen by the people, and congratulations to courts that properly and courageously discharge the duty of speaking truth to power by guiding the misguided back to that path through the decisions they take and the orders they make.
Hoffman, SC, is a director of Accountability Now
This article first appeared in Business Day