We must all have the discipline to accept that the majority decision of the Constitutional Court is the law, says Zak Yacoob.
In days of old, the king or other leader made laws, interpreted them, enforced them and decided who was in breach of societal norms. And that leader also pronounced the sentence, punishment or consequence.
This approach was soon found to be unsatisfactory and the idea of the separation of powers began to be developed. In apartheid South Africa, separation of powers was an absolute partition between the powers of the judiciary on the one hand and the executive and legislature on the other.
It was said repeatedly (and irritatingly) that the job of the judiciary was to interpret the law, the legislature to make the law and the executive to implement it. There was no bridge, so it was said, between law and justice, because the law, however unjust, had to be applied.
Executive or cabinet action was subject to court review in extremely limited circumstances. The recent vociferous minority demand to curb so-called judicial overreach reflects an opportunistic effort to return to that unholy, immoral era without regard to the vital reality that we now have a democratic constitution.
Our constitution decrees a different conception of separation of powers and, consequently, of judicial overreach. There is no rigid doctrine of the separation of powers or of judicial overreach. The exact contours or boundaries are determined by the particular constitution. Our constitution has fundamentally changed the relationship between the legislature and the executive on one hand and the judiciary on the other.
This change is powered by the idea of constitutionalism itself. In the old South Africa, Parliament was supreme. Parliament could pass any law regardless of whether it trampled human rights or whether the law was just. Since 1996 our constitution, not Parliament, is supreme.
The constitution declares that it is the supreme law, that all law inconsistent with it is invalid and the obligations imposed by it must be obeyed. What is more, a court is duty-bound to declare invalid all law or conduct inconsistent with the constitution, and to make a just and equitable order appropriate to the declaration.
This constitutional arrangement places a considerable limit on the powers of Parliament and cabinet. Parliament can no longer pass laws at will. All law must now comply with the constitution. So must all conduct of the executive. And it is the courts that decide whether Parliament, the cabinet or the president has complied with the constitution. Courts now do more than just interpret the law.
The judiciary is the guardian of the constitution and, in particular, the Bill of Rights. These rights are, generally speaking, for the benefit of everyone in the country and place obligations upon the legislature and the executive not to trample upon them. Courts are therefore, the guardians of the rights.
It is often said by the members and supporters of the executive that policymaking is its domain and has nothing to do with the courts. Indeed, it is said that court decisions that impact on policy made by the executive violate the separation of powers. This effort at defending the cabinet overlooks the fact that as soon as executive policy translates into law or conduct, that law or conduct must be consistent with the constitution. Otherwise, courts have no choice but to do their duty and declare that law or conduct invalid.
This is what our courts have been doing to the best of their ability in the controversial cases that have drawn the ire of certain sectors of society. According to our constitution, it is not for the executive, the legislature, or sectors of public opinion to decide whether the constitution is being obeyed or whether law or conduct conflicts with the constitution. The courts, and only the courts, have this power and duty. This stands to reason.
It would be strange indeed if the legislature or the executive were to be the judges of their own constitutional compliance. There will be legitimate differences of opinion about whether particular laws or executive conduct is constitutionally correct. This is why the constitution provides for appeals and says that the Constitutional Court, composed of eleven judges actually appointed by the president, makes the final decision in these matters. And we must not forget that seven of these judges of the court today were appointed by President Zuma himself.
We must all have the discipline to accept that the majority decision of the Constitutional Court is the law. I too had to accept this when I wrote minority judgments.
I trust that the whole of society will too, without making inappropriate and offensive overreach noises bordering on criminality.
* Justice Yacoob is a retired judge of the Constitutional Court.
** The views expressed here are not necessarily those of Independent Media.