Friday, May 11, 2007

Constitutional Court's conservative slip showing?

The majority judgment in the male rape case handed down yesterday, reveals a different kind of Constitutional Court, a Court that is both institutionally and socially more conservative than previously thought. It also reveals a court not familiar with its own jurisprudence or at least not respectful of that jurisprudence.

The majority judgment stated that a distinction should be drawn between the Court’s power to declare invalid legislation, and the Court’s power to develop the common law. The former is a power to check the exercise of power by the legislature to ensure that legislation conformed to the Constitution. The latter power, according to the Court, has always vested in the Court and is exercised incrementally as the facts of each case requires.

This move is rather surprising, given the fact that almost ten years ago the Constitutional Court declared invalid the common law crime of male on male sodomy. There was no talk of the incremental development of the common law in the sodomy case because the Court endorsed the view that if the common law contravenes the provisions of the Bill of Rights – as the definition of rape certainly does – then it has a duty to declare that provision invalid.

Now the Court seems to say that the common law will not ever be declared invalid – that move is reserved for legislation – and will only be changed if the specific facts before the Court requires it. The majority also seems to say to conservative lawyers: don't worry, this is not threatening because courts have always done this kind of incremental development of the common law. But this message seems to disregard the fact that we now have a Constitution that requires development of the common law and that it is not and cannot be business as usual. The Court's power has been extended and it has an ethical and legal responsibility to use that power to enforce the Constitution.

This judgment represents a deeply conservative move by the Court. First, it suggests that in certain circumstances the Court will be reluctant to upset the common law status quo too much and that it therefore does not really believe all that talk about a transformative Constitution. The problem with a transformative Constitution is, of course, that it actually requires the common law to change fundamentally and this Court seems scared to go down that road. Legal certainty ├╝ber alles!

Second, it seems to suggest that when the common law breaches the Constitution by, for example, discriminating against a group and demeaning them and affronting their human dignity, the Court will not help the class of people who are so demeaned and affronted, unless they from part of the very narrowly defined interest group before them. The bigger class of people in the same predicament will have to suffer until the day when someone can scrape together the money and lawyers to bring a case to Constitution Hill.

As Justice Langa argues indirectly in a footnote in his minority decision, this line of reasoning would have led the court in the same-sex marriage case to have declared the common law definition of marriage unconstitutional only to the extent that it did not allow two women to get married – because two women (and not two men) brought the case before the Court.

As I said below, this seems deeply irresponsible and disrespectful of the rights of people who do not always have the power and finances to take their case to the Constitutional Court. It suggests that there might be another reason for the decision, namely an unease on the part of the majority of judges with radical legal change and an unease, further, with recognising that rape is not only a women’s issue. Is this perhaps a conservative kind of formalism/feminism at work?


Africannabis said...

I simply can't believe that that ruling happened. As IF South africa has the time / resources to go through this whole thing again - to prevent men from being raped.

With a 300% occuptaion rate at some of the Western Cape prisons - don't tell me inmates are being indecently assaulted every night.

I would simply have to say - acually another Sissi says it best:

“I attribute my success to this, I never gave or took any excuse.” ~Florence Nightingale~

Anonymous said...

Excuse my ignorance, but do these judges each come up with a ruling (like in a game of rock, paper, scissors) or do they discuss the ruling? What I want to understand is whether Justice Langa could or did try to convince the majority of his point of view?

Anonymous said...

My question was not meant to be rhetorical - I really want to know!

Pierre de Vos said...

Hi, I have written a Blog post to answer your question. Hope it helps!

Anonymous said...

I am the (unfortunately very dismayed) presiding officer that wrote the original judgment in the Masiya matter, and I now have to sentence him whenever he is brought back to my court. I therefore have to be carefull in my criticism of the CC's judment but I share the view put forward elsewhere and in this blog that is one of te worst judments in the CC's entire existence.
A few points of criticism do however not seem out of place at this point in time:
1.) The CC's decision that magistates courts may not enquire into the consitutional valdity of a rule of common law: - Firstly, the Court ignored all rules (including its own juisprudence) of construction of statutes and the Constitution - it did not look into the reason why the word "inherent" is used in s 173 where the magistaes have been excluded - it did not test s 110 (using the words'any law') of the Magistraes Courts Act against the wording of s 170 of the Constitution (using the words 'any legislaion') where the said sections apear to 'attenuate'(the CC's choice of teminology) the 'duty' and powers of the magistraes courts to develop the law to conform with the Constituion - it did not note that the Afrikaans text of s 110 uses the words "enige wet", which is consistent with the text of s 170 of the Constitution - it did not take note of the travaux preparatoires leading to the amendment of s 110 he magisrates Courts Act (the Law Commission's Discussion Paper 75 - Project 111 - which Parliament so incompetently apparenly also ignored wen te aendment was effected) - and, lastly, it did not take into account that the vast majority of people often get their first (and sometimes only) brush with the law and the Bill of Rights in the magistrates courts. The possibility of an incoherent and fragmented common law developing if magistrates courts were allowed to develop the common law, the reason the CC believes why magistrates' powers are attenuated, leaves out of the reckoning that magistrates today are all legally trained - some academics out of own right - and that they will always, if they create new law, look for confirmaton by the High Court because they know that their decisions, standing alone, will have no real legal effect except for the case before them.
I will continue my second point lower down after I'm out of court.

Anonymous said...

I continue with my above criticism (excuse the spelling - my keyboard sometimes misses a key and, when I'm in great haste, it slips through unedited).
2.)The non-retroactivity (or -retrospectivity) of the development: In para [51] of its judgment, the CC actually leaves open the possibility that the legality principle might in some instances not be able to provide a bar against retroactive/or retrospective development of common law crimes. The CC then goes further and actually accepts that the 'prospectve' (as opposed to 'retrospective') development of the common law (where needed)should only happen in 'rare' cases. Without stating what 'rare' cases would be, the CC then simply accepts that this is such a case where the 'fair trial rights' of the accused justifies prospective development only. In the process, the rights of survivors/victims appear to have been left out of the reckoning, and they have not been balanced against the rights of the accused to see whether the latter can actually be limitted in terms of s 8(3)(b) read with ss 36(1) and 39 of the Constitution. This is something the trial court dealt with extensively, and one would have therefore expected the CC to do better than merely stating (without reasoning) that this case is not one where the common law can be developed retrospectively (which is the rule rather than the exception when the common law is developed). In the process, the CC: - left the Canadian jurisprdence of R v Finta out of the reckoning where a distinction is drawn between retrospective and retroactive development of the law [see also DH Doherty "What is done is done: An argment in support of a purely prospective application of the Charter of Rights" (1982) 2 CR (3d) 21 at 125.], the former being admissible, the latter not - it did not take into account that the deed that Masiya had been convicted of is an act which is mala in se, which does not require a preceding positive law to proscribe it [in fact, to use the majority's words - the crime of indecent assault in such circumstances is only 'recategorized' as a more serious form of sexual assault, namely rape] - it left the legislature's dragging of feet (even before Masiya was convicted) in providing for new legislation out of the reckoning - it did not examine the origin, nature and content of the legality principle at common law when describing s 35(3)(l) and (m) as codifications of 'long standing principles of the common law' - it relied on the decision of Veldman, which also can be criticised along the same lines, but which deals with statutorily increased sentencing juisdiction rather than development of the criminal law - etc.
3.) As far as the male/female thing is concerned, I associate myself fully with the majority and the criticisms in this blog and elsewhere. It can be added, however, that Nkabinde J (a woman), makes a big thing of womens rights activists'involvement in the alteration of the law of rape, even refers to the Convention regarding non-discrimination against women and the fact that the victim here is a child, but does not refer to the conventional and customary international law rules regading the rights of children (which are gender-neutral in all respects). The CC therefore did not really dispose of its mandate in s 39(1)(b) to consider [all applicable] international law when interpreting the Bill of Rights. [The same could be said under 3.) above.)
4.) In paras [2]-[32] the CC citicizes the courts a quibus for their reasoning that the common law definition 'as it currently stands' is'unconstitutional' to the extent that it is in need for development, saying that it would be 'throwing the baby out with the bath water'. In the process, the CC seems to think that a finding of unconstitutionality implies excision ('elimnation') of the rule, which is not what the courts a quibus intended at all! It should be clear from the judgments given below, that the magistrate and the Judge involved were of the opinion that the crime of rape should not be invalidated because of its non-compliance with the Bill of Rights, but that it should be developed to conform to the consitutional imperitives involved. In the process, the CC indeed ignored its own jurisprudence as far as 'reading down'/'reading in'/'constitutional conforming interpretation or development of the law' is concerned.
Yes, I think this was a bad judgment over all. Sorry to the survivor/victim in the Masiya matter! Sorry to all the survivor/victims of non-consensual anal penetration since my judgment was given until the CC's judgment almost two yeas later! Sorry to all the male (men/boys) who have been anally penetrated agaist their will since the CC's judment until one day (who knows when, Johnny De Lange?), either Parliament wakes up and passes the long awaited Bill or until a human rights group requests a declarator before the High Court! I did what I could, but to no avail.

Pierre de Vos said...

Mr Lamprecht, thanks for your interesting contribution on this debate. I will have to go and read up a bit regarding your argument about retroactive development of the common law - I am not sure who I agree with. However, you touch on an important and interesting issue, namely the fact that the CC seemed to be stumped when it was asked to develop an unconstitutional aspect of the common law instead of merely striking it down.

I cannot imagine that the judges think that a rule can only be unconstitutional if it can be struck down and that where a rule must be developed there is no question of unconstitutionality. Yet, some passages in the judgment seems to suggest just that. Surely if the common law is not in conformity with the Bill of Rights it is unconstitutional regardless?

Anonymous said...

I think the Court seriously confused substance with remedy. That whole 'throwing the baby out with the bath water' passage is based on the assumption that direct unconstitutionality could only result in declaring the whole definition invalid. That is clearly incorrect. As Mr Lamprecht points out, there are a whole range of remedies that follow a finding of invalidity and there is no reason those cannot apply to the common law.

The other worrying implication of the finding that there is no direct violation is that the Legislature could pass a statute using the old definition of rape, and it would be immune from constitutional challenge because you cannot indirectly challenge a statute!

Interestingly, the dissent expressly does not endorse the majority's finding on direct application.

Anonymous said...

While the approach propounded by Langa CJ and Sachs J impresses as more congruent with the fundamental values of the Constitution than does that of the majority, the essential injustice of the current distinction between the extended form of common law rape and what Nkabinde J herself describes as 'male rape' is the disparate treatment of the the offences for sentencing purposes.

Perhaps one way of moving the Justice ministry to do something about the issue is to attack the constitutionality of the provisions in the minimum sentence legislation which prescribe minimum sentences for the rape of females, but not for the rape of males.

In the context of the modern victim-centred basis for the crime of rape, acknowledged in the CC's judgments, it is unfairly discriminatory against the victims of male rape that equivalent violations are treated unequally for punishment purposes.

The minimum sentence legislation is known to be one of Johnny De Lange's pet hobby horses; so an attack on any of its provisions is likely to focus the Department's mind on the necessary legislative reform.