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3.03.2012

South Africa to "Review" Constitutional Court

Fifteen years after the adoption of the 1997 Constitution, a live debate has emerged in South Africa about the role of the judiciary. This week the Government published a Discussion Document on the Transformation of the Judicial System and the Role of the Judiciary in the Developmental South African State. The developmental language returns to the emphasis on social transformation, which might be contrasted with a more rights-oriented framework. What is interesting is that the language of transformation is now being directed not with just at South Africa’s socio-economic maldistribution, but at the judiciary itself. The implication, and the view of some commentators, is that the Court has interfered with the Government’s ability to engage in social and economic transformation.

The Government grounds this exercise in Sec. 16(6) of Schedule 6 to the Constitution:
"(a) As soon as is practical after the new Constitution took effect, all courts, including their structure, composition, functioning and jurisdiction, and all relevant legislation, must be rationalised with a view to establishing a judicial system suited to the requirements of the new Constitution.
(b) The Cabinet member responsible for the administration of justice, acting after consultation with the Judicial Service Commission, must manage the rationalisation envisaged in paragraph (a)"

In this light, and as part of a broader set of judicial reforms, the Minister of Justice announced a comprehensive assessment of the impact of Constitutional Court rulings on the transformation of the state and society. The nominal idea is to look at the impact of the decisions on socio-economic conditions, and to enhance capacity for dialogue with other branches of government toward pursuing a common goal. Others believe the ultimate goal is a reduction in the Court’s powers. President Zuma seemed to imply this in an interview in which he said “How could you say that the judgment is absolutely correct when the judges themselves have different views about it? We don’t want to review the Constitutional Court; we want to review its powers.” While the President has had to backpedal, the debate about the role of the Court and its ability to constrain Government seems to be likely to continue over the next couple years as the review proceeds.

2 comments:

  1. Thanks, Tom. Isn't this a perfect illustration of the political determinants of judicial review? The rulers' attitude and calculus towards a powerful court under a de-facto single party system are very different than the considerably less certain circumstances under which the new SA constitutional deal of the mid-1990s was adopted.

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  2. The debate about the South Africa's Supreme Curt and it's role in promoting social transformation is an interesting perspective to a comparativa analisys of the same phenomenon in Brazil. Here, when it comes to political determinants, we won't find a "de facto single-party system" - using Ran Hirschl's words; so a proposition of a deep change in the Court's powers won't be that easy to handle. Also, the Brazilian Supreme Court has sometimes presented itself as an important arena for mediating conflicts among political forces, acting in those cases really as a countermajoritarian force - so it could be seen as a sometimes usefull last resource.
    On the other hand, Brazilian's Courts role im promoting socio-economic rights is growing exponentially (one should take into account that judicial review could be exercised in each and every level of jurisdiction in the brazilan systema); rullings being held in a large spectrum of rights that goes from health to education, and most recently, housing. The Brazilian Supreme Court has affirmed that, when it comes do enforce constitutional commitments, the Judiciary is allowed even to formulate public policy.
    One can predict reaching a stalemate in this subject, with the miltiplication of judicial decisions that assure goods and services that may be classified as a socio-economic right. The decision's path in Brazilians Courts has not yeat dealed with two major effects: the budgetary's implications, but also (if not mainly), the risks to reaching or increasing equality, promoting distributive justice. After all, in the Brazilan system, a claim for obtaining socio-economic rights is normally articulated in individual lawsuits, and those could not be converted in class actions. As a result, Judiciary contribution to social transformation is limites to the minority that could promote a lawsuit.
    Progressive implementation, as a parameter to control public choices related with socio-economic rights seem to be unbearable to the South-Africa's government, probably because it allows the Court to examin the so declared reasons why a constitutional rights is not beeing implemented. In the Brazilian's system, it seems like a lack of equality is a low price to pay for keeping in the shadow distributive criteria that determinates current public policies related with promoting socio-economic rigths.
    Vanice Lírio do Valle, PhD.
    Estacio de Sá University
    Rio de Janeiro - Brazil

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