Friday, September 07, 2007

Floor crossing and politics

A thoughtful reader took issue with my post on floor crossing, arguing, first, that the the "argument that, so long as the legislature's procedure is followed, any amendment [of the Constitution] may stand is excessively legalistic" and, second, that my "argument that any attempt to judge the merits of floor-crossing would be an unwarranted involvement of the Court in politics is disingenuous" because no court is above politics.


On the first point: The Constitution is the highest law of the land and in a Constitutional state like ours any law or state action and many private acts that contravene the Constitution will be declared invalid because of this clash with the higher law. For this reason it is rather difficult to change the Constitution and this can only be done in South Africa if a complicated procedure is followed and, for the most part, if at least two thirds of the members of the National Assembly and six of the nine Provincial delegations in the NCOP agree to the amendment.

But those people who made the Constitution did not make it impossible to change any part of the Constitution. I cannot see what is formalistic about insisting therefore that if the correct procedures are followed to amend the Constitution, those amendments should not be testable against other provisions in the Constitution. How can one part of the Highest law be tested against another part of that same Highest law if both parts are of the same height, so to speak?

Also, why should unelected judges be given the power to thwart the will of the people to change the Constitution as expressed by two thirds of its representatives. It would be extremely undemocratic and would fly in the face of any semblance of the separation of powers doctrine to do so. The Constitution itself give the legislature and not the Courts, the power to decide if and how they want to amend the Constitution and the Court cannot take back this power which was given to another body.

If we do not want the politicians to change the Constitution, we should not vote for them. The courts cannot protect us in every situation from our own stupidity as voters and cannot act as a super legislature - that would be rule by judges and once Judge Hlophe becomes Chief Justice you will see how quickly everyone agrees what a bad idea THAT would be!

On the second point: I chose my words very carefully when I said that the Court felt that there was a danger that it would descend into the overt political arena if it declared invalid the amendments to the Constitution.

Of course courts play a political role - both in constitutional and other cases - and I will be the last person to deny this. Courts make decisions that will have consequences for people and these decisions are based on the judges' interpretation of the law. Texts do not interpret themselves and judges have to make choices about what kind of interpretation and hence what kind of outcome they wants. And these choices have legal and political consequences (and the two things can not really be separated in any case).

But judges are not completely unconstrained. They have to try and make decisions and must justify them in ways that will be legitimate and coherent and will not undermine their credibility and influence. For their decisions to have a semblance of legitimacy they must be more than mere party political decisions based on the beliefs of the judges - or at least the decisions must appear to be more than party political choices....

In my post I was pointing out that in the Floor Crossing case the judges felt that there was no plausible reason outside overt politics for them to intervene in the case. The "legal arguments" ran out and all that remained were arguments that in appearance and in reality would be based on specific party political type preferences - and would thus appear to be overtly political. The Judges felt that making such a choice would be bad for their credibility as a court and thus declined to declare invalid the Floor Crossing legislation.

I do not think this decision was unwise. The judges could have usurped the power of the legislature and could have declared the Floor Crossing invalid and this would have given them some cheap popularity with the chattering classes. But how would this have made them any different from Jacob Zuma or his supporters calling for that bloody machine gun? They would then also have become populists. And is that not the very reason we have a Court: to save us form the populists when it really matters....

12 comments:

Africannabis said...

das Gesicht interessiert mich nicht!

hex said...

Mich auch nicht, nie wieder wählen!

Africannabis said...

Ja well no fine - and there you have it.

The average man / joe / citizen had nothing to do with those changes that have allowed this farce to happen.

What ever the excuse and who's ever fault it is - makes no difference now.

How do we change it?

Before no one votes - or voter apathy kicks into high gear like it did in Zimbabwe? Then what is the point of an opposition, voting or democracy?

All I have to say to clarify my point is:

Juan Uys.

hex said...

Ever since floor-crossing started I've been campaigning vigorously against it, and now I'm tired. Very tired. The trouble is, floor-crossing only makes opposition voters mad, to the extent that they blame their parties and don't bother to vote at all any more. All this, of course, suits our ruling party just fine. They may tinker with it, but it's not going to go away. Viva ANC, viva. May as well get used to the one-party state, it's not going to be all that different to what we have now.

Africannabis said...

Floor-Crosstitution has left Cape Town lying on the sand like a beached fish flopping from shallow pool to shallow pool.

Each flip a flop.

My best quote thus far - has been

"What party do I belong to again?"

hex said...

Just listen to what Kobus Brynard (ex-NNP, ex-DA, now ANC) had to say: "I feel as if a weight has fallen from my shoulders. The ANC knows their shortcomings and that they need good people and expertise, they do not turn a blind eye to their shortcomings.I have no doubt they are intent on rooting out corruption. I believe that I can make a positive contribution to the party. I want to be part of the solution. I want to help shape the future and I don't want to perpetuate the past." Hell, the ANC are welcome to him ..

What party do I belong to again? Ha-ha, search me!

Michael Osborne said...

I agree with Pierre in the floor crossing debate (and I write as one who appeared for the UDM in the CC.) The “basic structure” argument is exceedingly problematic, for the reasons Pierre mentioned. So far as I know it has never been embraced in any constitutional democracy, with the possible exception of Germany. To assign to the courts the role of striking down constitutional amendments on the basis of what judges deem to be the unalterable foundation of the constitution is to establish rule by judiciary, to make the court the dominant branch of government.

I think also the CC would and should have upheld an ordinary Act of Parliament introducing floor-crossing. The fact that we disagree with floor-crossing on policy grounds, or because it lends itself to corruption, does not make it unconstitutional. The Constitution entrenches list-based proportional representation. There are many ways to implement such a system. No system of representation is perfect. It is especially difficult to argue that floor-crossing is incompatible with list-based proportional representation if one bears in mind that many countries in the world with such systems allow floor-crossing, in one form or another.

Africannabis said...

list based representation:

Juan Uys.

Africannabis said...

Ja hey - Cape Town is functioning at full headless-chicken race:

Politics in the streets :

Mayor fighting alleged Drug Lords getting arrested ...

National Highway blocked city paralysed...

Oh Ja - floor crossing, and the politics is has brung to Cape Town - DO NOT SERVE CAPE TOWN

Now while Provincial and National government were blamed for a National highway being disrupted while housing delivery which is a municipal 'thing' unless it's N2 because that unlike any other flagship development in the country this one does not have municipal involvement ...

So either way - whatever whether or not you walked the floor-crossing through the CC or not.

The Floor Crossing has left Cape Town paralysed - again. Just ask anyone who was stuck in the traffic today.

Juan Uys was no where to be seen at either of these Photo-ops - despite representing the party that represents the poor....

hex said...

Of course I can't agree with you, Michael. Suffice it to say that I would be a whole lot happier with this floor-crossing circus if it were to happen a month before an election.

Pierre de Vos said...

The interesting question is whether floor crossing is only upsetting voters of opposition parties or whether those who have always voted for the ANC would not be put off either over the long term. Although the ANC has increased its percentage of the vote in each election, they have actually had less and less people voting for them every election as people become disillusioned and do not bother to vote. So maybe it will all come home to roost in the end (he said optimistically!).

Mal said...

Sorry for only getting back to this so late. Been busy.

'...both parts are of the same height'. Not so. Section 1 and section 74 are specially protected from amendment requiring 75% of the National Assembly to vote in favour of amendment. Section 74 divides sections of the Constitution into three broad categories, some of which are more protected than others.

Founding Provisions (section 1) is the aspirational bit of the Constitution. I understand this to mean that the founders decided that South African democratic republicanism, constitutional supremacy, citizenship, identity and language were specially important - or perhaps specially vulnerable to change by a popular mandate. These sections are, by implication, more important (or vulnerable) than the Bill of Rights and the operational structures of government.

That's just a point.

I disagree with your loose use of the term 'democracy'. The delegation by the South African public of its powers to representative government doesn't mean that the public endorses everything that the representatives choose to do. 'If we do not want the politicians to change the Constitution, we should not vote for them', you say. Caveat emptor, absolutely, sure, you get what you vote for. But this is to trivialise the political relationship between the elected government and the electors. Between elections the government should be regarded in some ways as a legal tyranny. Only elections grant the electors the direct power of the legislature and executive.

One important means by which the electors can exert power between elections is by the threat of using this election-time power. There are others - demonstration, boycott, public participation in government, all these are, or can be, meaningful ways to get involved in governance. But usually the popular vote does not demand a true Athenian popular government. This is the essence of modern delegative, representative democracy: for voters it is an exercise in self-denial; for the government it is an exercise in power modified by fear.

A constitutionalist will suggest that only a system of checks and balances will promise any guarantee that this system can work. Guaranteed periodic elections are an example of such a check; but such checks need not, and should not, simply cover the elective parts of a republic. Placing the military under civilian control is another check. Allowing the Constitutional Court the right of veto over changes to the Constitution is another example of a check, but here we are back at the point of contention.

It's my contention that the Court is not only the interpreter of the Constitution, but its defender. No, the Court is not allowed to modify the written document; but of course, like any court, it has wide powers to place its interpretation on the supreme law, and this in many cases amounts to the same thing. Most importantly, the Court has to rationalise the Constitution as a permanent framework for the country, and this means starting with the presumption, both written AND implied, that the Constitution is not 'up for grabs' even by the most powerful, monolithic government the popular vote might choose to elect in any single election. To do otherwise would be to sacrifice 'future guarantees for the sake of present safety', as the Americans have it. The Court may not allow present governments wide enough powers to abolish the power of the future state.

If what I have written is a conservative perspective, so be it. But I believe that at some point democratic radicalism and constitutionalism diverge, and I hope that the Court is always on the side of the Constitution against anyone who presumes to use the executive and legislature to abolish the future safety of the South African state.