Judicial reforms an attempt at hollowing out the constitutional state

There are indications that the judicial reforms envisaged by the Zuma presidency might in fact attempt to hollow out the constitutional state in that its foundational pillars are slowly replaced with building bricks of a different constitutional system.

Apparently not only the judiciary should be transformed. City Press reported that the cabinet is contemplating dramatic changes to the Constitution. In a draft policy document, which is to be discussed at the ANC's policy conference in June, there a section titled ‘The second transition'. In it the ANC states that the Constitution of 1996 ‘may have been appropriate for a political transition, but it has proven inadequate and even inappropriate for a social and economic transformation phase.'

The discussion document on judicial transformation, which Minister Radebe published on 28 February, is indeed confusing and one can understand that some critics accuse the minister of double speak on judicial independence (see here - PDF).

There is much emphasis on the role of the courts as a motor of socio-economic transformation. The way in which Minister Radebe has employed the term ‘transformation' is reminiscent of how this is understood in socialist theory of state. Since he studied at the Karl Marx University in the former German Democratic Republic (GDR) in 1980/81, obtaining an LLM in 1981 and then proceeded to study at the Lenin School in Moscow, it is possible that he may conflate the foundations upon which socialist states rested with central pillars underpinning a constitutional state.

To start with, students who wanted to study law in the GDR were selected for their reliability to implement the Marxist-Leninist concept of law and such studies were supervised by the Stasi. Unless you were a member of the communist party, you could not study law or become a judge.

This is the milieu in which the minister had done his legal training at the Karl Marx University, as the University of Leipzig was called from 1953 until 1991. Records in the Stasi Archives preserved information for posterity that 26 ANC students studied at various Stasi universities in the DDR during 1980, including a number of students studying at Leipzig with the blessing of the Stasi (MfS HA II Nr. 35699 BStU 000039).

It may therefore be instructive to briefly look at how the East German system worked and to compare that with the judicial reforms that the minister has in mind. The Berlin law professor, Rainer Schröder, published a number of illuminating articles on the constitutional and legal system of the GDR and how the courts functioned in this system. Here is a brief summary:

In 1968, the GDR replaced the initial constitution of 1949 with a ‘progressive socialist constitution'. Instead of the usual democratic notion of a separation of powers, it departed from the principle of a socialist unity of power. There was only a rudimentary separation of powers and the judiciary had no power to test the constitutionality of any legislation. The legislature (Volkskammer) had the final say whether a statute was constitutional. The principle of a unity of power thus primarily served the purpose to cement a system of legislative supremacy, which could not be subjected to judicial review.

Although judicial independence was formally stated in article 96 of the GDR Constitution, judges were expected to invoke only the letter of the law (sozialistische Gesetzlichkeit) irrespective of norms of justice. The judicial system departed from the principle of socialist partiality (Parteilichkeit der Justiz). Law in this system was of a lower ranking than politics and functioned merely as an instrument of the party politics of the Socialist Unity Party (SED). Jurisprudence was thus attuned to a perception of law as ‘instrument of power' to enforce socialist transformation in the political sense.

After the judicial reform of 1963, the High Court (Oberste Gericht) headed the judiciary politically. In other words, courts of a lower ranking were not merely bound by precedent but had to adjudicate according to the regulations made by that court. The Stasi and the higher ranking party organs of the SED could also exercise influence on how the courts had to adjudicate. It was expected that judges should take note of the political and economic policies of the SED and to adjudicate accordingly. It was the duty of the judiciary to resolve political, economic and cultural issues to serve socialist transformation. Adjudication was perceived to be an organic element of the unitary exercise of political power in the state.

The judiciary had relatively little leeway to serve the ends of justice under this extensive control system. Although the GDR Constitution formally contained some rights of citizens, these rights had no normative power since judicial review of state action was not possible. A person could thus not assert his/her rights vis-á-vís state organs in a court of law like in a constitutional state with a proper bill of rights, which limits the scope of power of state organs. The socialist system instead attempted to overcome the ‘bourgeoisie' notion of civil and political rights.

Prosecutors were controlled by the executive and the Stasi prosecuted in political trials. The Stasi established the most extensive surveillance of a civil population that ever existed with one Stasi official to every 180 GDR citizens. Criminal law was invoked as a mechanism to reconstruct society and served as an instrument for the ‘top-down socialist revolution'.

The system has further been characterised by a centralisation of power at all levels. The civil service consisted of deployed cadres. Administrative law was rather rudimentary due to the socialist concept of a unity of state power. The assertion of administrative justice in the courts was not possible because judicial scrutiny of executive power would have been in conflict with the unity of state power.

One should also know that in order to prevent a strong social democracy in East Germany, the Soviets already forced the Social Democratic Party (SPD) to amalgamate with the Communist Party in a consolidated the Socialist Unity Party (SED) in 1946. The block system prevented political opposition and the notion of people's democracy led to an electoral system, which suppressed free elections. When the GDR's population started to flee the country, it closed the borders and built the Berlin Wall in 1961 to keep them inside. The Wall (euphemistically called the ‘anti-fascist protection wall') and border was lined with a no-go zone studded with landmines. When Hungary opened its borders in 1989, East Germans fled their country by the thousands.

Although Minister Jeff Radebe has taken great pains to stress that the ANC does not intend to compromise judicial independence, the fine print in the discussion document and the draft legislation is a serious cause for concern. Certain aspects of it definitely have a socialist flavour and are in conflict with the paradigm of a constitutional state.

Unlike the clear separation of powers and functions prescribed by the Constitution, the discussion document of justice minister in paragraph 3.2.1 states the following:

"The importance of the legislative, executive and judicial branches of the state to cooperate and act interdependently in exercising their distinctive constitutional obligations for the common good of the country cannot be overstated. The government must function as an integrated, singular unit ..."

The minister thus equates the government not with the executive branch but all three branches of state power that have to function as an integrated, singular unit. This, with due respect, is how the East German system used to function. It has nothing to do with the separation of powers in a constitutional state.

Instead of the current role of the judiciary to guard the Constitution and the law, and to scrutinise the constitutionality of state action, there should in future be ‘regular interaction' and ‘dialogue' between the three branches of state power ‘to ensure cooperation and interaction'. The courts should not only play an active role to implement economic transformation; apparently the executive wants to take influence on adjudication as well.

Paragraph 3.3.4 comes to the point rather bluntly, and states that ‘where certain court decisions are perceived not to fully advance the transformative purpose of the Constitution' there is a need ‘for open and constructive debate on the decisions of the courts'. This too sounds a bit like the East German system where other organs could give their input with regard to judicial decisions.

In paragraph 3.3.5 the minister contends that the Constitution does not define judicial independence and that there is no clarity what it means. In the jurisprudence of constitutional states, however, this has been fleshed out pretty clearly. It means first and foremost independence from the executive (ie no executive judicial appointees, and the executive being proscribed to remove judges from office or to determine their salaries), and secondly, that judge presidents or a chief justice may not prescribe to other judges in the same jurisdiction how they should adjudicate in a specific matter.

In paragraphs 3.3.10-11, however, the minister insinuates that the separation of powers of the judiciary from other branches of state power, particularly the executive, was not intended ‘to be absolute' but ‘fluid'. More is following in the envisaged Seventeenth Amendment of the Constitution and Superior Courts Bill. Although the minister pays lip service to the constitutional state separation of powers that all three branches are equally strong, the intended judicial reform is actually creating a system of socialist executive supremacy.

The envisaged Seventeenth Constitutional Amendment wants to install the Chief Justice, who is hand-picked by the President, as head of the judiciary to run the judiciary in a similar way as the president runs the executive branch (section 165(6) in terms of the envisaged Seventeenth Constitutional Amendment). The Office of the Chief Justice should have a director-general, and function like a ‘national department'. This is not envisaged as true independence of the judiciary though.

The Chief Justice and all court managers, registrars, and administrative staff will be executive appointees. (See preface at v, discussion document; sections 8(2), 10 and 11 of the Superior Courts Bill). In terms of section 8(3) of the Superior Courts Bill, the Chief Justice will be empowered issue ‘written protocols or directives, or give guidance or advice, to judicial officers' for the performance of their judicial functions. This is obviously not in line with constitutional state jurisprudence on judicial independence and more in line with judicial powers of the former Oberste Gericht in the GDR.

The minister also does not clearly delineate administrative-law functions of the police to secure public safety and order from the instituting of criminal procedures by prosecutors (paragraph 4.2.4). Criminal investigations are prosecution-led in constitutional states, with the police assisting them.

It would not be wrong to say that the discussion document on judicial reform creates the impression that socialist transformation is reconcilable with the principles of a social-democratic constitutional state, whilst it is not so. The critique of Dene Smuts that the government is trying to co-opt the courts, is essentially correct, but in fact goes much further than meets the eye at first glance. A few comments on the judicial reforms that are envisaged thus appear appropriate.

The justice minister tries to import the notion of a ‘single judiciary' although this concept is nowhere mentioned in the Constitution (paragraph 4.2.6 of the discussion document). One may wonder whether this is inspired by the socialist model in East Germany as set out above. He does not say so openly though. Instead he makes the remarkable contention, which is repeated in the preamble of the Superior Courts Bill, that in the pre-1994 era the lower courts (ie magistrates' courts and regional courts) were not part of the judicial branch but fell under the executive since the minister of justice could appoint magistrates.

It seems closer to the truth that the idea of a single judiciary is inspired by the socialist model. It serves two purposes: first, to extend executive control of the judiciary, and second, to centralise power and weaken the provinces. Thus, after the provincial prosecuting authorities were abolished by creating a ‘single prosecuting authority' (which is again executive-controlled instead of being an organ in its own right as foreseen by Chapter 8) the government now wants to do the same with the High Courts. The effect of this is that the provincial tier of government retains only two branches of state power, viz. the legislature and executive, but that the two organs in the third branch of state power is taken away from them:

The Minister wants to abolish the provincial High Courts to cast them in a single High Court with provincial divisions. The trick behind it is that currently the premiers of each of the provinces may sit in the electoral college of the Judicial Service Commission that appoints the provincial judge presidents. The Superior Courts Bill now intends to accord the President the power to appoint all judge presidents and deputy judge presidents of the High Court (section 6(2) of the Superior Courts Bill).

Furthermore, not legislation but the justice minister will determine the areas of their jurisdiction: he may even incorporate the current jurisdiction of a specific province's High Courts into that of another province (section 6(3) of the Superior Courts Bill).

The bill also confers the power on the President to stack the number of judges in the Supreme Court of Appeal and the High Court (sections 5(i)(iii) and 6(2)(b) of the Superior Courts Bill), whereas this ought to be either determined legislatively or a power of the provincial judge presidents to prevent judicial politics.

To summarise, the President would be able to appoint practically all leading positions in the Superior Courts. There can be no doubt that the envisaged Seventeenth Constitutional Amendment and Superior Courts Bill intend to cement executive control of the judiciary through appointments and controlling their salaries.

This is further underscored by the manner in which rule making for the courts is handled: Although section 171 of the Constitution determines that the legislature must lay down rules and procedures for the courts, the minister has changed this in sections 29(1) and 30 of the Superior Courts Bill: these provisions state that such rules should be promulgated as executive regulations by the minister, who must merely submit that to parliament before it is promulgated. This is obviously unconstitutional.

From the above discussion, it is clear that the intended Seventeenth Constitutional Amendment in combination with the Superior Courts Bill actually attempts to incorporate elements of a socialist regime as it existed in the former GDR. In fact, these endeavours can be compared with smuggling a Trojan horse into the constitutional state. The ANC policy document tries to make this palatable by arguing that Constitutions are ‘living documents' that ‘reflect the stage of development of a given society'. However, there is a big difference between the current social-democratic constitutional state and a socialist regime. Such a far-reaching constitutional reforms are not merely like a ‘car service' as President Zuma tries to pass it off.

It is easy to trump such illusions that the more societies aspire to attain the next stage of Marxist development, the more evolved they are. I recently worked through a few thousand documents in the Stasi Archives in Berlin in which the advantages of socialism was regularly proclaimed like a mantra to prove the superiority of the development of socialist society and economics in East Germany over that of West Germany.

One just has to compare their respective successes in the car industry. All that the East German economy could come up with during the forty years of socialist rule was the Trabant and Wartburg, whereas West Germans captured the top end of the car industry world-wide with Mercedes, BMW, Porsche, Audi and VW. Whereas East Germans lived under an authoritarian government, which controlled the judiciary and ruined the economy with nationalisations that stymied technological development and wealth creation, West Germans had freedom, a thriving social-democratic market economy and an independent judiciary that guarded over a vibrant democracy in a constitutional state. The choice South Africans have is to continue to have a Mercedes or BMW Constitution or to go on a Trabi Safari.

The South African judiciary transformed?

(Photo: L Wolf - Nostalgic Trabi Rental next to the Stasi Museum, close to Checkpoint Charlie, where parts of the Berlin Wall were retained with exhibits commemorating people that were killed as they tried to flee the GDR.)

Sources on East German law:

1. Rainer Schröder ‘Geschichte des DDR-Rechts' 2004(2) Jura 73-81. (Part 1) (History of GDR Law - General oversight of legal development and state structures)

2. Rainer Schröder ‘Geschichte des DDR-Rechts: Straf- und Verwaltungsrecht' (2004) Forum Historiae Iuris, (Part 2) accessible under http://fhi.rg.mpg.de/articles/0404schroeder.htm (History of GDR law: Criminal and Administrative Law)

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