Klaus Tuori University of Helsinki

Transcription

1 1076 I CON 12 (2014), I agree with Prosser on most issues. Particularly the increasing limitations on traditional parliamentary democratic controls deserve attention and probably call for multiple solutions. A proper economic constitution as a yardstick rather than a straitjacket could be one solution. Klaus Tuori University of Helsinki klaus.tuori@helsinki.fi doi: /icon/mou074 Theunis Roux. The Politics of Principle: The first South African Constitutional Court, Cambridge University Press, Pp $60. ISBN: Theunis Roux in his book The Politics of Principle: The first South African Constitutional Court, sets himself an ambitious task: he first seeks to convince the reader that the first ten years of the South African Constitutional Court s operations have been a success, and then that this success is the result, not of good luck, but of deliberate strategies adopted by its judges. The focus of the book is what Roux calls the Chaskalson Court, in other words, the period between 1995 and 2005 when the court was headed by Chief Justice Chaskalson. The book is divided into three parts. Part I clarifies the claim that the court has been successful and explores why such an outcome was, in fact, unexpected in a new democracy such as South Africa; Part II describes the specific legal and political context in which the court operated; and Part III uses different cases as examples to provide evidence that the judges were indeed the agents of the court s success. This success, Roux argues, lies not in the adoption of a single doctrine that was faithfully followed during Chaskalson s stay in office, but in using several different strategies that allowed the court to use the hegemony of the African National Congress (ANC) to its advantage. Roux starts from the premise that the South African Constitutional Court has been praised as successful, by lawyers and political scientists alike. This is worth exploring further, he argues, because what amounts to success according to each of the two disciplines varies. On the one hand, lawyers contend that the measure of success for a constitutional court is the extent to which it manages to decide the cases before it by using principled legal arguments. On the other hand, political scientists consider a constitutional court successful if it is deciding cases in such a way that it protects its institutional independence; in other words, if it prevents political interference in the way it operates. While in mature democracies, the two measures of success go hand in hand, in the sense that constitutional courts are expected to, and in fact do, reach prin cipled decisions without any undue interference from political branches, in new and fragile democracies, the two criteria of success might be pulling in opposite directions: a principled and legally correct decision might be contrary to the interests of the ruling party, and therefore likely to result in political consequences that undermine the court s institutional independence. What is remarkable about the Chaskalson Court s achievement therefore, is that while it was operating in such a fragile democracy, it not only handed down some very fine decisions [or] managed to stay out of political trouble, but that it did each of these things without compromising its ability to do the other (at 3). Using both legal and political criteria to determine the success of the court required the adoption of an interdisciplinary methodology that lies at the heart of, and informs the conclusions of, the whole book. In devising this methodology, Roux carries out an extensive and impressive literature review: he critically discusses the writings of political scientists, lawyers, and philosophers from South Africa and abroad (mainly the US), and uses practical examples from different jurisdictions to explain and clarify each step of his argument. The end result is a matrix that skillfully combines the insights from the legal and political science disciplines (at 88): the

2 Book Reviews 1077 vertical axis of this matrix is concerned with the extent to which the court is legally constrained, in other words, the extent to which it operates within a legal-professional culture which demands that its decisions are justified through principled arguments. Conversely, the horizontal axis measures whether the court is politically insulated from interference that could undermine its independence. Combining the two axes results in four types of courts: those that are both legally constrained and politically insulated (the ideal scenario); those that are neither legally constrained nor politically insulated (the worst-case scenario); those that are not legally constrained, but are politically insulated (for example, because there is no strong legal-professional culture, and the fragmentation of political parties prevents them from interfering with the court); and those that are legally constrained, but not politically insulated. The South African Constitutional Court falls into the last category: its judges are members of a well-developed legalprofessional culture, with cause lawyering playing an important role in litigation, but at the same time, the largely uncontested power of the ANC makes it vulnerable to political intervention. Thus, this matrix, which is likely to be the book s most influential and lasting contribution to the literature on constitutional courts, persuasively demonstrates that the legal and political success of the court was by no means guaranteed. However, it is when Roux develops the second prong of his argument and attempts to show that the court s success was the result of deliberate judicial strategies that the book really comes into its own. Among these strategies, which Roux argues varied depending on the type of case the court had to decide, was the use of rhetoric and/or international case law to ease the blow of unpopular decisions and the claim that the Constitution reflects South African moral values, which the court is the guardian of and seeks to protect. An additional, particularly popular, judicial strategy in relation to socio-economic and property rights, was the adoption of context-specific tests in order to determine whether a violation had taken place. By refusing to adopt a more rigid test, like the minimum core approach favored by the Committee on Economic Social and Cultural Rights, the court was able to defer to the government when the facts of the case were particularly controversial (thus preventing a backlash of political interference), while upping the pressure if its micro-politics allowed (hence protect the interests of the applicants and become more broadly popular among South Africans). Illustrative of some of these strategies is Chief Justice Chaskalson s judgment, speaking for a unanimous court, in R v. Makwanyane, the death penalty case. 1 The difficulty posed by this case to the court was that, while the death penalty was morally unpalatable, unpopular among ANC leaders, and contrary to a number of human rights provisions mentioned in the Constitution, it was extremely popular among the South African public. Since this was among the first cases it heard, the court was torn between adopting a principled decision, on the one hand, and building broad public support, on the other. This gap was bridged through the adoption of two strategies: first, the judgment repeatedly refers to the moral values that the Constitution is giving effect to, including the South African value of ubuntu, which generally translates as humanness. Thus, the court in effect told the people: abolishing the death penalty is what you would choose to do, if you were truly living out the value of ubuntu. And it is our duty as constitutional judges to help you to see that (at 248). Having established the judgment s moral superiority and rootedness in South African values, Chief Justice Chaskalson adopts a second strategy, that of citing several international cases on the death penalty, thus giving the (largely illusory) impression that Makwanyane was a precedent-bound legal opinion. These strategies, Roux argues, contributed to the court s success by achieving three things: first, they allowed the court to deliver a decision that was popular among the ANC leadership; second, that decision 1 R v. Makwanyane, 1995 (3) SA 391 (CC). Discussed in detail in the book at

3 1078 I CON 12 (2014), was legally persuasive and in line with international case law on the issue; and third, the court s reasoning was such that it reduced the judgment s unpopularity among the South African public. In addition to the interesting methodology and persuasive examples, the book should be praised for preemptively dealing with important counterarguments that could be made to its main thesis. An example from Chapter 10 of the book illustrates the point: Roux concedes that a fatal blow to his argument would be to prove that the court did not adopt the strategies that he describes in order to strike a balance between the legal and political criteria for success, but due to its understanding of what it was institutionally allowed to decide according to the doctrine of separation of powers. Delving into a detailed analysis of the doctrine he argues that the court has, over the years, not been basing its decisions on a single interpretation of this doctrine. To the contrary, depending on the facts and controversy surrounding the case, it has used a fluid understanding of the doctrine: sometimes it has argued that it is entitled to find unconstitutional anything that is not in line with the Constitution, while on other occasions only those political decisions that are contrary to the constitution and within its competence to decide (at 371). Had the court s case law been shaped by the doctrine of separation of powers, this would have been fleshed out more consistently and in more certain terms. Roux convincingly argues, therefore, that far from the doctrine guiding the judges decisions, referring to it and interpreting it in the most convenient way, depending on the facts of the case, is itself a strategy that the court uses to strike the balance between adherence to legal principles and protection of its institutional independence. Nevertheless, despite the original methodology, extensive literature review, and persuasive examples found in the book, questions remain whether Roux has indeed met his dual objective of proving that the court is successful, on the one hand, and that this is a result of its deliberate strategy, on the other. The author devotes the first part of the book to arguing that success for a constitutional court that is legally constrained but not politically insulated, like the South African one, consists of constantly striking a balance between the two and gradually increasing its institutional independence as much as possible. However, is this what the court has achieved? A critical analysis of its jurisprudence suggests that, in highstake cases, it has regularly prioritized the need to politically insulate itself over its wish to deliver principled decisions. Illustrative of this is both its case law on political rights (which is criticized in the book) and that relating to socio-economic ones (which Roux praises). Roux discusses two right-to-vote cases in which the court should have found a violation, yet failed to intervene: the first concerns the mandatory use of an ID-card by everyone seeking to vote and the second, allowing those that had been voted into the legislature as members of one party, to change political affiliations while remaining members of Parliament in between elections (a practice known as floor-crossing). 2 Both cases posed a threat to the ANC s hegemony. The law in the first case, while on the face of it race-neutral, disenfranchised a disproportionate amount of whites, coloreds, and Asians who were not in possession of ID cards; problematically, these are also the racial groups that historically supported political parties other than the ANC. Ruling that it was unconstitutional would not stop the ANC from receiving more than 50 percent of the votes, but it could undermine its prospects of having a super-majority and being able to single-handedly amend the Constitution. Equally problematically, the court acknowledged that the floor-crossing constitutional amendments that were challenged in the 2 New National Party of South Africa v. Government of the Republic of South Africa and Others, 1999 (3) SA 191 (CC), 1999 (5) BCLR 489 (CC); United Democratic Movement v. President of the Republic of South Africa and Others (African Christian Democratic Party and Others Intervening; Institute for Democracy in South Africa and Another as Amici Curiae) (No. 1), 2003 (1) SA 488 (CC), 2002 (11) BCLR 1179 (CC).

4 Book Reviews 1079 second case, had the effect of luring the strong candidates of the smaller parties to the wings of the ANC, operated to the disadvantage of the former and consolidated the hegemony of the latter. 3 Yet, in neither of the two cases did the court find the relevant provisions to be unconstitutional; rather, it opted to side with the ANC and deliver legally questionable decisions in order to protect its institutional independence. As Roux himself put it, [a] more complete denial of the Court s responsibility for protecting the quality of South Africa s democracy could hardly be imagined (at ). Also problematic is the court s jurisprudence on socio-economic rights. Roux acknowledges that the context-specific test adopted by the court to determine whether there is a violation can sometimes result in a light-feather review of the government s socio-economic policies (at 292). However, what is lost in public support since the court s jurisprudence in this area of the law has not been endorsed enthusiastically by South Africans is gained in insulation from political interference achieved by keeping the ANC happy; and, in any case, the context-specific review is not completely deferential since it allows the court to increase its scrutiny if the micro-politics behind the case allow this. Roux s main example of this latter claim is the Treatment Action Campaign case, in which the court declared the government s policy on HIV/AIDS unconstitutional and ordered it to make anti-retroviral drugs freely available to hospitals around the country. 4 However, while the decision itself and the level of review in this case are admirable, one cannot help but wonder whether the court would have reached the same decision had the cabinet, two weeks prior to the hearing, not finally recognized the efficacy of anti-retroviral drugs and announced a universal roll-out plan (at ). If the court refuses to intervene in those cases where its involvement is needed most urgently and delivers principled and brave decisions only when the government has already agreed to change its policies, is it really striking the balance between the legal and political criteria for success? To put it in Roux s terms, if the role of a constitutional court is to use and interpret law as a bulwark against the worst excesses of politics (at 219), to what extent has the constitutional court successfully achieved that? Ultimately, whether the court is successful according to Roux s interdisciplinary methodology depends on an assessment of whether it has struck the right balance between delivering principled judgments and insulating itself from political interference. In the majority of cases, it is easy to determine whether such a balance has been achieved. In others, Roux himself seems to be less certain. Illustrative of this is Grootboom, a case in which the court had to decide whether the housing situation of a community of about 900 displaced people, was constitutional or not. 5 The case essentially challenged the whole of the government s housing program and was as a result a political hot potato: the court had to deliver a seemingly principled judgment that did not turn the ANC against it. In response to this challenge, it rejected the applicant s submission that there should be a minimum core to the right to housing, which the government had allegedly failed to meet, and held that the test of determining whether a violation had taken place was context-specific. The court justified its decision by arguing that, unlike the International Committee on Economic Social and Cultural Rights, which had adopted such a test, it did not have the necessary information before it to determine what the minimum core of each socio-economic right entailed. This approach has been criticized as unpersuasive and unprincipled, 6 criticisms which Roux endorses, before concluding that: 3 United Democratic Movement v. President of the Republic of South Africa and Others, supra note 2, at para Minister of Health and Others v. Treatment Action Campaign and Others (No. 2), 2002 (5) SA 721 (CC), 2002 (10) BCLR 1033 (CC). 5 Government of the Republic of South Africa and Others v. Grootboom and Others, 2001 (1) SA 46 (CC), 2000 (11) BCLR 1169 (CC). 6 David Bilchitz, Poverty and Fundamental Rights: The Justification and Enforcement of Socio- Economic Rights (2007).

5 1080 I CON 12 (2014), Although the Court could no doubt have been clearer about this, its real objection to the minimum core approach had more to do with the long-term institutional consequences of adopting this understanding of its mandate than the absence of adequate information in the particular case before it (at 288). The argument made here therefore, is that the lack of access to information was just an excuse used by the court, whose main concern was to keep the ANC happy and protect itself from political interference. Ultimately, Roux considers Grootboom a success because although it was a legally dubious case, it was a politically safe one. Why then is Roux critical of the court when it adopts a similar approach of prioritizing political insulation over principled decision-making in the right to vote cases? One explanation for this could be that political rights should receive greater judicial protection than social ones, but neither Roux s writings nor the South African Constitution itself, support such a view. An alternative explanation could be that, despite Roux s explicit rejection of the argument, the court had a greater responsibility to intervene in the political rights cases because it was institutionally better suited to deal with them than with the rights at issue in Grootboom. However, if that is the case, questions are being raised again as to whether the Court s decisions have been guided by the doctrine of separation of powers, rather than a conscious effort to strike a balance between the legal and political criteria of success. The Politics of Principle is a landmark book for those interested in South African politics, history, law, and the interaction between these disciplines. In particular, Part II of the book, which provides important information about the constitutional negotiations that took place in the country in the early 1990s and astute insights about the background and beliefs of all the judges of the Chaskalson Court, makes a very interesting read. Moreover, while the book s final conclusions are not easily transferable to other new and fragile democracies because of the rather specific context in which the Chaskalson Court was operating, the methodology and matrix devised in Part I, which allow one to locate a Constitutional Court along the axes of legal and political constraint, can be a useful tool to constitutional lawyers and political scientists around the world. Finally, the analysis of the case law in Part III of the book is essential for anyone interested in the unique South African Constitution and can provide original perspectives even to those who are well versed in the case law cited in the book. Any remaining doubts about its central thesis that the Court was indeed successful and this was the result of deliberate judicial strategies arguably have to do less with the strength of Roux s argument and more with the difficulty of the task he undertook in the first place. Athanasia Hadjigeorgiou University of Central Lancashire (Cyprus Campus) ahadjigeorgiou@uclan.ac.uk doi: /icon/mou072 Maria Popova. Politicized Justice in Emerging Democracies: A Study of Courts in Russia and Ukraine. Cambridge University Press, 2012 (pbk 2014). Pp US$ ISBN: It is no longer innovative to emphasize the role of judges as policy-makers, the relevance of courts as political actors, and the prominent place that judicial institutions especially courts of last resort now hold in democratic societies. There is a general agreement that courts are meaningful political players, sometimes even in the face of significant constraints. Yet, despite the burgeoning comparative judicial politics literature, there is still room for further work in multiple topics, including the role of courts across different types of political regimes; dynamics of decision-making at judicial institutions other than high courts, and the role of different types of state and non-state actors in the judi-