The arcane matter of the Constitution

The decline of politics and the rise of law in its stead.

In his BBC Reith Lecture series, Jonathan Sumption, a former justice of the Supreme Court of the United Kingdom, made the argument that judges were becoming increasingly powerful and that their powers (and their roles) had increasingly taken on a political character. Not only that but also that law had risen to a place of prominence in society, in the place of politics. This he attributed to a breakdown of trust between citizens and politicians, that has resulted in citizens being more comfortable looking to the law and judges, as opposed to politicians and the political process, to attend to their most pressing needs. Of course, this was said in the context of the United Kingdom, but it is as apposite to South Africa now more than ever.

The years of Jacob Zuma’s presidency exemplify this. Faced with a President whom many regarded as having had disregard for constitutionalism, and a ruling party hellbent on protecting him, civil society and the opposition parties turned to the courts for help. And help there they did find. The courts stepped in — always cautious not to cross the fine line that is the separation of powers — and held the President, his executive, and sometimes even Parliament, to account. The wisdom of some of those judgments is to us yet to be revealed.

Now, let’s be frank. Some of the questions brought before the courts were not, strictly speaking, legal questions. That is questions of law. Questions of law are those questions the answers to which can only be found through the application of accepted general legal principles and rules of law. This very readily excludes moral and political questions, which require reasoning quite distinct from legal reasoning. This is because these are questions that the law was never meant to answer and for which the law makes no provision.

Consider the Democratic Alliance’s attempt to review and set aside the dismissal of then-Minister of Finance, Pravin Gordhan, by then-President Zuma. They had argued that the President’s power to appoint and dismiss members of his cabinet was wide but not unfettered and that it was subject to the principle of rationality. Leaving that argument aside for the moment, what question of law does the President dismissing a member of his cabinet immediately present? For the Constitution vests the executive authority of the Republic solely in the President. He is then free to appoint as many members of cabinet as he wishes. In other words, only the President has original executive power. That is, a power granted by the Constitution. Ministers on the other hand only have delegated executive power (i.e., holding office and vested with the necessary executive power only for as long as the President determines). The President’s appointment power, therefore, lies at the heart of executive authority and is the one power that should, arguably, remain unconstrained. (Update: the Constitutional Court handed down judgment in this matter and Jafta J agrees with me, although he goes much further).

Returning to my initial question, what is the question of law presented by the exercise of this power? The high court, in this case, held that the President’s appointment power was not unfettered and that it was subject to the principle of rationality and, therefore, judicial review. The high court ordered the President to provide a record of reasons for his decision to dismiss Minister Gordhan. Since the Constitution does not require the President to provide reasons for the exercise of the appointment power and does not guarantee members of cabinet due process when this power is exercised, why (and how) did the high court identify that as the question it had been called upon to answer? To be sure, there may be valid reasons to ask the President to provide reasons for his hiring and firing decisions. He may want to take the nation into his confidence and brush aside any allegations of bad faith or malicious motivations for his actions or may want simply to account to his party and constituents. Or, in the case of opposition parties, they may wish to show that the President was indeed malicious in his dismissal of a minister. These are valid, political, reasons for requiring the President to furnish reasons. But they are not required by law.

Introducing his fourth lecture in the series, Lord Sumption quoted the words of French political scientist and writer Alexis de Tocqueville who, in relation to the United States of America, said: “The more we reflect upon all that occurs in the United States the more we shall find that the lawyers, as a body, form the most powerful, if not the only, counterpoise to the democratic element in the Constitution.” Lawyers are wordsmiths, that is their craft. They have the uncanny ability to transform even the most legally-remote of questions into neat legal questions that courts need to answer.

This is more so in the area of constitutional law and public law more broadly. Given the open-textured nature of the Constitution, it is easy for lawyers to divine, from the somewhat vague constitutional text, questions that ex facie seem to be of law. This requires the framing of purely political or moral questions as legal problems that require judicial resolution. They are usually cast in very broad terms and finding consonance with some other value alleged to be grounded in the Constitution, absent any real legal foundation. The results are usually judgments that are not sound in law, do not lay down concrete legal rules, nor expand or enrich existing ones, or even worse, ones that confuse existing law.

I know I quote Antonin Scalia a lot for someone who is the antithesis of what he believed in but please grant me this indulgence. When Justice Scalia dissented from the US Supreme Court’s decision to strike down the Defense of Marriage Act, a statute which denied same-sex marriages federal recognition, he noted that the case was ‘about power in several respects’, that it was about ‘[the] people’s power to govern themselves, and the court’s power to pronounce the law’. The case about the ‘gratuitous’ displays of the apartheid flag — Nelson Mandela Foundation Trust and Another v Afriforum NPC and Others (‘NMF’) — is one such case.

I pause to ask, again: what question of law does any display of the apartheid flag immediately present? The answer, for me at least, is none. The question whether it is right or justifiable, in a society with a history like ours, to display the apartheid flag is a moral one. It is one in respect of which reasonable people (if you consider white supremacists reasonable — let’s assume, for the sake of argument, that they are) can hold differing views. The decision whether displays of the apartheid flag should be banned or whether such displays should be criminalised is a political one that the people, through their elected representatives, should make.

Judges have always had a counter-majoritarian problem. They are unelected, wield significant power (e.g the power to invalidate democratically passed legislation), are near-impossible to remove and their decisions are binding on everyone, including the other two branches of government. Their decisions are usually unpopular and the rationale for that has always been that they should act as a check against the other two arms of state, protect minorities from the whims of various majorities, and safeguard the rule of law. It is then for good reason that their jurisdiction has always been limited to questions of law. Judgments are final. It is therefore problematic when courts are roped into moral and political disputes, for their decisions are definitive and often signal the end of a debate on a particular issue.

Scalia appreciated this fact, when, at the end of his dissent, he said:

The Nelson Mandela Foundation approached the Equality Court, seeking an order declaring that “any gratuitous displays” of the apartheid flag constitute hate speech, unfair discrimination and harassment against black people. This order was sought in terms of the provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act (“Equality Act”). The court granted the order.

Before I consider the court’s reasoning, let me sketch out a specific controversy surrounding the Equality Act and its hate speech provisions in particular. Section 10, under the heading “Prohibition of hate speech” states that no person may “publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to be hurtful; be harmful or to incite harm; promote or propagate hatred”.

The controversy is whether this definition of hate speech is impermissibly wide and unjustifiably limits the right to freedom of expression in section 16 of the Constitution. This argument is based on several grounds, but one, in particular, bears mentioning. It is that “hate speech” is common parlance for a category of constitutionally unprotected speech. That is speech that falls beyond what the Constitution regards as acceptable. Section 16(2) provides that:

The last category is what people refer to as hate speech. The argument on this point is that the Constitution in section 16(2) sets the parameters of what kind of speech constitutes hate speech and that only speech that amounts to “advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm” can be classified as hate speech. The problem then, with section 10 of the Equality Act, is that it broadens the definition of hate speech to include speech that would (according to this argument) ordinarily be protected by the Constitution, and visits sanction upon anyone who engages in speech of that kind.

There are several critiques to this argument, the first is that if section 10 is unconstitutional for widening the definition of hate speech, all other advocacy of hatred based on grounds other than race, ethnicity, gender or religion and which does not constitute incitement to cause harm would pass constitutional muster even where there has been a clear injury to one as a result. The injured party would then, presumably, only have recourse to the common law as the constitutional standard would not be met. Which leads to the second critique, which is that section 16(2) presents a very high bar for anyone alleging hate speech to meet, which would all but make hate speech claims impossible to prove. Alas, I digress.

The court in the NMF case proceeded on the basis that there was a justiciable case for it to determine. The Equality Act is not very well-drafted, so a large portion of the judgment is seized with deciphering what it could all mean. Much of the court’s reasoning turns on the meaning of “words” in section 10, and whether, because displays of the apartheid flag do not involve the uttering or publication of words, the hate speech prohibition could apply to them. Afriforum had argued that the prohibition was to speech and not symbols (GASP! — the worst person you know has made a very good point). The court rejected that argument as being too literal. It held that “speech” must be taken to mean more than just words, to encompass other forms of expression. It is worth quoting the court fully at this point:

“Words” in section 10(1) of the Equality Act may be interpreted to mean ideas, ideologies, beliefs, instructions, etc conveyed by the words. “Words” thus means what the words convey or mean and not just a conglomeration of letters, which though constituting a word or words may be meaningless in a particular context. What the section targets is thus the meaning behind words and not simply words, although the subject of the verbs is stated as “words”. What is behind words, that is, their meaning, may be represented by verbal and non-verbal expressions.

Besides being, by any standard, an incredibly convoluted argument and a near-redraft by interpretation of the provision, the court’s reasoning shows just how ill-suited the Equality Act was for this case. While it is true that meaning may be conveyed both through words and symbols, it is doubtful that the Act was drafted to encompass all manner of expression in the way that the court determined. More worrying is the attempt to almost ignore the text of the statute in order to reach this conclusion. As Kentridge AJ once said, “if the language used by the lawgiver is ignored in favour of a general resort to ‘values’ the result is not interpretation but divination”.

The court goes on further to say that section 12 of the Act, which provides that “bona fide engagement in artistic creativity … in accordance with section 16 of the Constitution” is not hit by the hate speech prohibition, supports its conclusion that the prohibition is not only to words but to “the expression of ideas, not only by words, but also by artistic means”. But of course, the statute could, by the same token, be limited only to words because creative writing, for example, is an artistic endeavour.

The court makes a further, more interesting, argument that hate speech is a form of unfair discrimination and that displays of the flag constitute, by extension, unfair discrimination. I must admit to having been taken aback by this. Constitutional Court jurisprudence on this point as I understand it (and I may not understand it at all) is something to the effect that the prohibition on unfair discrimination applies to: (1) law or conduct; that (2) differentiates between people or categories of people and which differentiation is not rational; and (3)(i) that amounts to discrimination if based on a specified ground (race, gender, etc.); (ii) unfair if it is based on a specified ground — but, if it is not, then based on the disparate impact that the discrimination has on the injured person and persons similarly situated. I am not sure whether the test is different under the Equality Act, but assuming that it is the same, I cannot see how a mere display of the apartheid flag amounts to unfair discrimination.

Continuing its rejection of Afriforum’s argument, the court states that were the prohibition to be restricted to words it would “directly contravene the right to dignity of victims of non-verbal hate speech”. This, of course, begs the question, because the transcription and publication of hateful speech are directly hit by the prohibition because words are not only communicated verbally.

The foregoing discussion is not for any purpose other than to demonstrate that not all questions ought to be brought before judges for adjudication, no matter how tempting or interesting. Of course, the court in this case could not turn the parties away and had a duty to provide effective relief to the aggrieved party, but it should not have had to.

In his commentary on Lord Sumption’s lectures, Richard Ekins, an Oxford law professor says the following:

Political and moral questions require political and moral resolution and invite judges into those realms to make those decisions that are, frankly, inappropriate for them to make.

In a characteristically cheeky moment during oral argument, Justice Neil Gorsuch of the US Supreme Court remarked to counsel that “maybe we can just for a second talk about the arcane matter of the Constitution.” Of course, he was suggesting that his fellow justices did not quite understand the Constitution as well as him. I would never say that (I would be lying if I did). Mine is simply to say that overeager litigants (and their lawyers) in their quest for the vindication of their causes, run the risk of rendering the actual matter — the substance — of the Constitution, arcane.

For we know that our Constitution envisages a meaningful role in our democracy for each of the three arms of state. Each with its own powers, shared with the others to the extent necessary. When we hollow out the powers of one and vest them onto another, we do so at a great disservice to our democracy. Running to courts to circumvent the democratic process is bad not only for the courts but for our democracy as well.

Can it be earnestly suggested that a well-resourced and influential organisation such as the Nelson Mandela Foundation could not have lobbied members of the legislature to introduce legislation to ban, or criminalise, the display of the old flag and other hateful symbols? Or to have engaged in a nationwide campaign to educate people as to why it was wrong to display the flag and win popular sentiment? The outcome would not only have been better, but it would have been legitimate. Anxieties about an inability to convince the public of your cause, or a lack of popular support at the polls, should not trump the primacy of the political process and the value of deliberative processes in a democracy such as ours.

Had Parliament not abdicated its role to proactively make laws as opposed to being reactive to court judgments, we would be in a better place. A bill would be tabled, public consultations would be held, voices would be heard, an Act would be passed, it would be challenged, the court would look to the Act and satisfy itself that it is constitutional, the losing side would be disappointed but satisfied that they had participated in the decision-making process and accept both that process and the judgment as legitimate. No-one would feel like the imposing power of the courts was brought to bear on them. This is what the Constitution commands. Let us never forget.

Lawyer interested in constitutional law and theory. Son of Baldwin.