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Judicial Review of Parliamentary Rulemaking: a Provisional Case for Restraint

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Judicial Review of Parliamentary Rulemaking: a Provisional Case for Restraint NYLS Law Review Vols. 22-63 (1976-2019) Volume 60 Issue 2 Twenty Years of South African Constitutionalism: Constitutional Rights, Article 5 Judicial Independence and the Transition to Democracy January 2016 Judicial Review of Parliamentary Rulemaking: A Provisional Case for Restraint FIROZ CACHALIA Adjunct Professor at the School of Law, University of the Witwatersrandm, South Africa Follow this and additional works at: https://digitalcommons.nyls.edu/nyls_law_review Part of the Constitutional Law Commons Recommended Citation FIROZ CACHALIA, Judicial Review of Parliamentary Rulemaking: A Provisional Case for Restraint, 60 N.Y.L. SCH. L. REV. (2015-2016). This Article is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Law Review by an authorized editor of DigitalCommons@NYLS. NEW YORK LAW SCHOOL LAW REVIEW VOLUME 60 | 2015/16 VOLUME 60 | 2015/16 FIROZ CACHALIA Judicial Review of Parliamentary Rulemaking: A Provisional Case for Restraint 60 N.Y.L. Sch. L. Rev. 379 (2015–2016) ABOUT THE AUTHOR: Firoz Cachalia is an Adjunct Professor at the School of Law, University of the Witwatersrand. He holds a B.A. with honors, an LLB, and a Higher Diploma from the University of the Witwatersrand, and an LL.M. from the University of Michigan. He is a former Speaker of the Gauteng Legislature and member of the Executive Council of the Gauteng Provincial Government. www.nylslawreview.com 379 JUDICIAL REVIEW OF PARLIAMENTARY RULEMAKING: A PROVISIONAL CASE FOR RESTRAINT NEW YORK LAW SCHOOL LAW REVIEW VOLUME 60 | 2015/16 I. INTRODUCTION: LAW AND POLITICS We derive our passion for and distrust of democratic politics from the Athenians. The triumph of the democrats over the oligarchs in ancient Greece is celebrated, but the trial and execution of Socrates for opposing the prevailing orthodoxy offends our contemporary sense of justice as much as it did Plato’s.1 As a result, Plato became disillusioned with politics and sought to define justice in purely philosophical terms.2 His pupil, Aristotle, thought he was wrong to collapse all virtues into justice; politics—a practical discipline aimed at addressing the needs of citizens—has its own virtues and goals.3 Aristotle explained that in politics, man realizes his potential through the polis, and that the purpose of the politeia (constitution) is to find the “proper balance between all the various legitimate forces that operated on a state.”4 Platonic philosophers, however, when confronted by the “great beast of the populace, the democratic assembly,”5 continued to view politics with suspicion. In their view, a constitution should embody an ideal statement of impartial justice that is independent of politics, or at least provide an ethical foundation for a different kind of politics.6 Contemporary constitutionalism is a contested and contradictory synthesis of Platonic and Aristotelian sensibilities. It is broadly expressed in the complex relationship between law, as legal constraint, and politics, as conflict and disagreement. These are not parallel spheres that can be defined and separated by making bright- line distinctions.7 But it is important to retain a sense of the distinctiveness of these two modes of decisionmaking in order to preserve the integrity8 of adjudication, and 1. See, e.g., I.F. Stone, The Trial of Socrates 225–30 (1989). 2. See C.D.C. Reeve, Introduction to Plato, Republic viii, viii–x (C.D.C. Reeve ed., G.M.A. Grube trans., 1992). 3. Alan Ryan, 1 On Politics: A History of Political Thought from Herodotus to the Present 78–80 (2012). In his Republic, Plato provides an account of a just polis in the utopian city of Kallipolis. Reeve, supra note 2, at xv. His solution to the evils being practiced in Athenian society and politics was to propose rule by philosopher kings. Id. As he explains in his seventh letter: I . finally saw clearly that the constitutions of all actual cities are bad and . beyond redemption. Hence I was compelled to say in praise of the true philosophy that it enables us to discern what is just . and that the human race will have no respite from evils until those who are really and truly philosophers acquire political power . Id. at ix. In the polis of Plato’s imagining, there is justice because philosophy governs and there is no politics. 4. Ryan, supra note 3, at 34. 5. Jacques Rancière, On the Shores of Politics 1 (Liz Heron trans., 1995). 6. See John Rawls, A Theory of Justice 194–200 (rev. ed. 1999) (1971). 7. Rather, as Duncan Kennedy has argued, politics and law interpenetrate and overlap. See Duncan Kennedy, A Critique of Adjudication: Fin De Siècle 19 (1997). 8. Insistence on this distinction is not necessarily associated with formalism and does not preclude recognition of the ideological content of law. Even Karl Klare, who advocates the adoption of a politicized conception of constitutional law in South Africa, maintains that “[a]mong [the] types of law- making, adjudication is . the most reflective and self-conscious, the most grounded in reasoned argument and justification, and the most constrained and structured by text, rule, and principle.” Karl E. Klare, Legal Culture and Transformative Constitutionalism, 14 SAJHR 146, 147 (1998). However, 380 NEW YORK LAW SCHOOL LAW REVIEW VOLUME 60 | 2015/16 “to make adjudication serve the larger goal of advancing the power of a free people to govern themselves.”9 The logic of constitutionalism is to displace democratic politics in order, paradoxically, to preserve it from the destructive force of its own passions.10 This displacement and disparagement is accentuated when judges resort to arguments from political morality in adjudication.11 Constitutionalism aspires to provide democratic politics with safe harbors, which in the absence of legal constraint may burst its banks. But what is the cost of this shrinkage of politics, and which entitlements deserve to be immunized from the risks of short-term politics?12 Each specific case of constitutional entrenchment requires justification, and raises distinct questions of interpretive praxis when constitutional disputes are adjudicated. The text of the South African Constitution addresses some of these questions.13 But determining (1) when judicial intervention is appropriate, and (2) the proper modes of judicial reasoning and standards of review, are not always self- evident or even derivable from the text. Nor is it always clear when extra-textual arguments from political morality are justified. Since the establishment of South Africa’s Constitution in 1996,14 and particularly over the past five years, the judiciary has boldly asserted its powers of review over matters internal to Parliament.15 These internal matters include the exercise of there is also an ambiguity in this early formulation of his theory of transformative constitutionalism. While maintaining that interpretive fidelity remains an important judicial value, this he says does not mean that judges are limited to consulting values imminent within the text. Id. at 158–59. This reasoning suggests that there are no constraints on the sources of political morality external to the constitutional text judges may rely on in adjudication. This article calls that proposition into question in the context of the exercise of judicial review of parliamentary rulemaking, a form of non-legislative parliamentary action. In this context, the argument that extra-textual moral reasoning is required to contribute to egalitarian social change is not available. 9. Roberto Mangabeira Unger, What Should Legal Analysis Become? 115 (1996). 10. See id. at 167. 11. In effect, democratic politics are restricted to mundane, negotiable matters of conflicting material interests, not including fundamental moral questions bearing on the individual’s right to autonomy, dignity, and impartiality. 12. See Unger, supra note 9, at 167. 13. The South African Constitution contains a list of judicially enforceable individual rights framed in broad language that invites moral reasoning, and certain vertical and horizontal structures are protected from revision through ordinary democratic politics. Section 11 is an interesting example. It provides simply: “Everyone has the right to life.” S. Afr. Const., 1996, § 11. In the first human rights case after the 1994 election, S v. Makwanyane, the Constitutional Court held that this right rendered the death penalty unconstitutional. 1995 (3) SA 391 (CC) at para. 151. This conclusion does not follow axiomatically from the language of the section. Some reference to extra-textual considerations and argument was required. See id. at paras. 10–95. 14. See S. Afr. Const., 1996, § 1. 15. In comparable jurisdictions, such internal matters are considered either non-justiciable, or appropriate for only deferential judicial consideration, since they fall within the domain of Parliament as a co-equal branch. It is not the argument of this article that parliamentary rulemaking should be considered non- justiciable, nor that the proper boundaries of judicial review are static. That would be a difficult 381 JUDICIAL REVIEW OF PARLIAMENTARY RULEMAKING: A PROVISIONAL CASE FOR RESTRAINT NEW YORK LAW SCHOOL LAW REVIEW VOLUME 60 | 2015/16 disciplinary powers by Parliament over its members;16 the constitutionalization of a judicially-enforceable obligation to facilitate public participation in its deliberations;17 the creation of a non-textual constitutional right of individual members of Parliament to table and have considered legislation drafted at the expense of Parliament;18 and the review of rulings by the Speaker of the National Assembly19 when Parliament is in session.20 The focus of this article is on Mazibuko v. Sisulu, a case in which the Constitutional Court, exercising powers of review over parliamentary rulemaking, invoked a rather iconoclastic moral argument to conclude that there was an unconstitutional “lacuna” in the National Assembly Rules regarding the scheduling of a debate and vote on a motion of no confidence in the President.21 The decision has significant implications for the separation of powers between the judiciary and the political branches.
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