Global Jurist
Topics
Volume 10, Issue 2 2010 Article 8
Political Theory Put to the Test: Comparative
Law and the Origins of Judicial Constitutional
Review
Maurice Adams∗
Gerhard van der Schyff†
∗
Tilburg University and Antwerp University, m.adams@uvt.nl
†
Tilburg University, g.vdrschyff@uvt.nl
Recommended Citation
Maurice Adams and Gerhard van der Schyff (2010) “Political Theory Put to the Test: Comparative
Law and the Origins of Judicial Constitutional Review,” Global Jurist: Vol. 10: Iss. 2 (Topics),
Article 8.
Available at: http://www.bepress.com/gj/vol10/iss2/art8
Copyright c 2010 The Berkeley Electronic Press. All rights reserved.
Political Theory Put to the Test: Comparative
Law and the Origins of Judicial Constitutional
Review∗
Maurice Adams and Gerhard van der Schyff
Abstract
In this article we try to answer the questions of why and when judicial constitutional review
comes about as a matter of fact in some countries (as in Belgium and South Africa) but does not
seem able to get off the ground in others (as in the Netherlands). More generally phrased: under
what conditions is judicial constitutional review actually introduced in a particular jurisdiction?
These are questions with a politico-sociological dimension, and what is striking is the extent to
which these have remained underexposed in the wealth of research on the theme of judicial constitutional
review. Here we will attempt to address these questions, and we will do so by outlining the
political genesis and development of judicial constitutional review in Belgium and South Africa
and also by checking these histories against a number of explanatory models or theories derived
from political science. It turns out that the introduction of judicial constitutional review cannot
simply be ascribed exclusively to the covert strategies of a particular societal class that wants to
protect its value systems (as R. Hirschl argues), but might just as well be the result of a concrete
systemic need of a tangible political system. Our main aim is to make suggestions for a reorientation
of the theories concerned, especially by putting ‘grand social theorizing’ against legal
dynamics, and to try to bring the two perspectives together.
KEYWORDS: judicial constitutional review, law and political theory, comparative law
∗
For their comments, advice and criticism we thank M. Bossuyt (President Constitutional Court of
Belgium), J. Griffiths (University of Groningen, the Netherlands), R. Leysen (Clerk at the Constitutional
Court of Belgium), R. Malherbe (University of Johannesburg, South Africa), J. Meeusen
(Antwerp University, Belgium), A. Meuwese (Tilburg University, the Netherlands), M.E. Storme
(Leuven and Antwerp Universities, Belgium) and W. Witteveen (Tilburg University, the Netherlands).
Many thanks, too, to Dick Broeren for all kinds of other help. The usual disclaimer applies.
1. INTRODUCTION
Judicial constitutional review is gaining ground in political systems worldwide.1
To give but a few recent examples with which the authors of this article are
familiar: Belgium introduced judicial constitutional review in the early 1980s, as
did South Africa in the mid-1990s after the collapse of the apartheid regime. And
in the Netherlands, a bill is pending that would partly abolish the bar on judicial
constitutional review of Acts of Parliament as stipulated by Section 120 of the
Dutch Constitution. The bill was first introduced in 2002 after which it was
adopted by the Dutch House of Representatives in 2004. In December 2008 it was
subsequently accepted by the Dutch Senate by a mere 37 to 36 majority.2
For the
bill to successfully amend the Dutch Constitution it now has to pass a second
reading with a two-thirds majority in both chambers which can only happen after
the next general election (which after the recent collapse of the governing
coalition actually took place on 9 June 2010).
So while by the middle of the nineteenth century this power had only been
available for courts in the USA (since 1803), Greece (1847) and Norway (since
1
Recent examples include Eastern Europe, Asia, and South America. See, e.g., W.
Sadurski, Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of
Central and Eastern Europe, Dordrecht, Springer, 2005, 377 pp.; T. Ginsburg, Judicial Review in
New Democracies: Constitutional Courts in Asian Cases, Cambridge, Cambridge University
Press, 2003, 310 pp. and S. Gloppen et al. (eds.), Democratization and the Judiciary. The
Accountability Function of Courts in New Democracies, London, Frank Cass, 2004, 210 pp. Even
in long-standing parliamentary democracies things are afoot, a case in point being the UK, where
in 1998 the European Convention on Human Rights became directly enforceable through (the lens
of) the Human Rights Act. Even so, full judicial review of constitutionality is not provided for by
this Act, as considerations of parliamentary sovereignty preclude British courts from having
jurisdiction to nullify legislation (they may only make recommendations of incompatibility to the
legislator). See, e.g., C. Gearty, Principles of Human Rights Adjudication, Oxford, Oxford
University Press, 2005, 264 pp. and H. Fenwick, G. Phillipson and R. Masterman, Judicial
Reasoning under the UK Human Rights Act, Cambridge, Cambridge University Press, 2007, 455
pp. Another telling example is a similar arrangement in New Zealand (1990). See, e.g., P.
Rishworth, G. Huscroft, S. Optican and R. Mahoney, The New Zealand Bill of Rights, Oxford,
Oxford University Press, 2003, 904 pp. These developments are in line with a general trend
towards ever more intrusive interventions by the judiciary in society and politics. See C.N. Tate
and T. Vallinder (eds.), The Global Expansion of Judicial Power, New York, New York
University Press, 1995, 556 pp., and C. Guarneri and P. Pederzoli, The Power of Judges. A
Comparative Study of Courts and Democracy, Oxford, Oxford University Press, 2002, 235 pp.
2
Parliamentary Proceedings II, 2001-2002, 28 331, no. 2. More specifically the bill was
submitted to the Dutch House of Representatives on 1 April 2002, and an amended version was
adopted and then submitted to the Dutch Senate on 14 October 2004, which adopted the bill on 2
December 2008 (Parliamentary Proceedings I, 2008-2009, 28 331, no. 11).
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1866), today more than 80 countries have some form of it.3
Add to this the
increasing tendency among international and supranational courts to act as
constitutional courts4
, and the picture is complete: constitutional review by the
judiciary has gathered momentum and is en vogue. Seen from this point of view,
the Netherlands might be something of a late arrival when it comes to judicially
reviewing the Constitution.
These circumstances have led us to reflect on this topic. Our aim here is
however not to investigate the normative question whether judicial constitutional
review is reconcilable with ‘democracy’; a question already under considerable
debate.5
We believe that arguments for or against constitutional review by the
judiciary cannot be put forth in the abstract; whether or not it is as a matter of
democratic principle desirable is according to us, first and foremost, a matter of how
political actors (including courts) in a given society act and interrelate with each
other in fact. And partly as a result of this, different societies will give different
answers to the question of which institutions should be competent – i.e.
empowered – to review the constitutionality of legislation.6
It is interesting to note
that Aristotle was already aware of this when he observed that “[t]he attainment
of the best constitution is likely to be impossible for the general run of states; and
the good law-giver and the true statesman must therefore have their eyes open not
3
See R. Hirschl, Towards Juristocracy. The Origins and Consequences of the New
Constitutionalism, Harvard, Harvard University Press, 2004, p. 1, and L.F. Goldstein, “From
Democracy to Juristocracy”, 38 Law & Society Review 2004, pp. 611-614.
4
E.g., the European Court of Justice, the European Court of Human Rights, the Dispute
Settlement Body of the World Trade Organisation, and the International Criminal Court.
5
A typical and significant example of the democratic approach in this context, can be
found in Jeremy Waldron’s work. See J. Waldron, Law and Disagreement, Oxford, Oxford
University Press, 1999, 332 pp. and The Dignity of Legislation, Cambridge, Cambridge University
Press, 1999, 206 pp. Waldron recently seems to have slightly reconsidered his position. In
particular, see his “The Core of the Case Against Judicial Review”, 115 The Yale Law Journal
2006, pp. 1346-1406. See also the reaction by Richard H. Fallon, Jr., “The Core of an Uneasy
Case for Judicial Review”, 121 Harvard Law Review 2008, pp. 1693-1736. For another example
(which, however, takes the form of an argument in favour of a more restrained interpretative
approach by the judiciary), see R. Bork, The Tempting of America: The Political Seduction of the
Law, New York, Free Press, 1990, 430 pp. A moderately supportive view of constitutional review
is that of J.H. Ely, Democracy and Distrust: A Theory of Judicial Review, Cambridge
(Massachusetts), Harvard University Press, 1980, 268 pp.
6
Cfr. T. Cristiano, “Waldron on Law and Disagreement”, 19 Law and Philosophy 2000,
p.542. On this, in the context of the current Dutch debate, see M. Adams and G. van der Schyff,
“Constitutional Review by the Judiciary in the Netherlands. A Matter of Politics, Democracy or
Compensating Strategy?”, 66 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht
2006, pp. 399-414.
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only to what is the absolute best, but also to what is the best in relation to actual
conditions.”7
In this article we however try to answer the question why and when
judicial constitutional review comes as a matter of fact about in some countries
(as in Belgium and South Africa) but does or might not seem able to get off the
ground in others (as in the Netherlands). More generally phrased: under what
conditions is judicial constitutional review actually introduced in a particular
jurisdiction? Under what conditions are politicians and other politically
significant elites prepared to implement judicial constitutional review? These are
questions with a politico-sociological dimension, and what is striking is the extent
to which these have remained underexposed in the wealth of research on the
theme of judicial constitutional review. Here we will attempt to address these
questions, and we will do so by outlining the political genesis and development of
judicial constitutional review in Belgium and South Africa and also by checking
these histories against a number of explanatory models or theories derived from
political science. Our main aim is to make suggestions for a reorientation of the
theories concerned, especially by putting ‘grand social theorizing’ against legal
dynamics, and to try to bring the two perspectives together. While doing so, we
will also try to explain the current situation in the Netherlands.
2. WHY AND WHEN WILL JUDICIAL CONSTITUTIONAL REVIEW COME
ABOUT?
Under what conditions will judicial constitutional review be introduced?8
In his
thought-provoking book Towards Juristocracy: The Origins and Consequences of
the New Constitutionalism9
, Ran Hirschl has undertaken research into this very
question. He focuses, in particular, upon the origins of judicial constitutional
review with regard to fundamental rights in Canada, New Zealand, South Africa
and Israel. In fact, he asks himself a two-part question: first, has judicial
constitutional jurisdiction indeed been established, as is often alleged, as a result
of the need to better protect human rights; a need that is supposedly inspired by
views on social justice? Or, second, is the introduction of judicial constitutional
review the product of a political struggle of a completely different nature?
7
See Book IV of his Politica. The translation is by E. Barker and R.F. Stalley, Oxford,
Oxford University Press, 1998, no. 1288b21, p. 134. In this quotation the word ‘constitution’ is of
course used in a more general sense, referring to the way a society is organized.
8
In this article we make no difference between the introduction of constitutional review as
a general competence for all regular courts in a specific jurisdiction (as is the case in South
Africa, and as is being contemplated in the Netherlands at the moment), or as a competence for
one specific constitutional court (as is the case in Belgium).
9
R. Hirschl, Towards Juristocracy: The Origins and Consequences of the New
Constitutionalism, Harvard University Press, Cambridge (Massachusetts), 2004, 294 pp.
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According to Hirschl the answer to this double question is especially pertinent
because the introduction of judicial constitutional review is far from evident. Why
should the political elites in power accept throwing themselves at the mercy of
non-elected institutions, in casu judges? Why should they in other words
relinquish control?
When put this way, the question points to an answer. Hirschl quite clearly
prefers the second proposition as the more convincing. In his opinion,
understanding the strategic interests of political and otherwise influential actors in
society is crucial in order to explain why and when judicial constitutional review
is introduced in a specific jurisdiction. Hirschl more particularly claims that
constitutional review by the judiciary gets off the ground when on the one hand
the political, cultural and economic elites believe that their privileged positions
are under threat, and when on the other hand the judicial elites can enhance their
political influence and international reputation. The introduction of judicial
constitutional review is from this point of view the result of a strategic alliance
between important politicians and other elites wanting to protect their personal
interests and value systems, while “they profess support for democracy”.10
And
this is particularly urgent when on the one hand the social cleavages within a
certain society are intensifying and becoming sharper, and on the other hand when
the aforementioned elites fear future subjugation to the masses. Thus, in societies
where ‘hegemonic’ elites find themselves existentially confronted with other
competing groups who do not share the same ‘neoliberal’11
values, interests and
world vision, they seize the chance to ascend their particular values and interests
beyond the usual political confrontations and, by that, outside the generally
accepted mechanisms of decision making based upon majority rule. The
introduction judicial constitutional review is a way for these elites to
institutionalize a fundamental mistrust regarding majoritarian decision-making.
“[V]oluntary self-limitation through the transfer of policy-making
authority from majoritarian decision-making arenas to the courts
seems, prima facie, to run counter to the interests of power-holders
in legislatures and executives. The most plausible explanation for
voluntary, self-imposed judicial empowerment is therefore that
political, economic and legal power-holders who either initiate or
refrain from blocking such reforms, estimate that it serves their
interests to abide by the limits imposed by increased judicial
intervention in the political sphere. In other words, those who are
eager to pay the price of judicial empowerment must assume that
10
Ibid., p. 3.
11
Hirschl uses the phrase neoliberal(ism) quite often, but does not explain what he means
by this and how it is different from liberal tout court.
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their position (absolute or relative) would be improved under a
juristocracy.”12
What is more, the introduction of judicial constitutional review is made before it
is too late, which means before the masses, which the elites resist and whom they
fear, really seize power.
According to Hirschl, his theory is more convincing than alternative
explanations for the introduction of judicial constitutional review: the fact that it
can better predict the timing of the introduction of constitutional review is his
proof of that.
“None of these theories [i.e., alternative theories for explaining the
introduction of judicial constitutional review] accounts for the
precise timing of constitutional reform. If we apply these theories
to a concrete example, they consistently fail to explain why a
specific polity reached its most advanced stage of judicial progress
at a specific moment and not, say, a decade earlier.”13
To be sure, constitutional review is often also supported by political players and
stakeholders other than the hegemonic elites identified by Hirschl, but the support
of the elites are nevertheless necessary. The latter, in other words, have
disproportionate influence over the decision-making process and ultimately
determine the timing, extent and nature of constitutional reform.
Hirschl believes his hypothesis is vindicated by the fact that the courts in
the jurisdictions he researched do not, as far as he is concerned, support the
interests of the masses. According to him they do not primarily, by exercising
constitutional review, further social justice by eliminating the existing socioeconomic
inequalities between different parts of the population – therefore they
do not support the interests of the oppressed but nevertheless emerging masses but
rather endorse the ‘conservative’ agenda of neo-liberalism and that of the
elites. And they do so first of all through the protection of classic ‘Lockean’
fundamental rights - defensive rights such as the right to private property, privacy
and freedom of speech - rights protecting negative liberty, in the terminology of
Isaiah Berlin. Social and economic rights - ‘claim’ rights enabling positive liberty,
especially beneficial to the poor masses - are in practice scarcely supported by the
courts.14
12
Hirschl, R, Towards Juristocracy, o.c., p. 11.
13
Ibid., p. 36.
14
Ibid., pp. 146-147.
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“Whereas the constitutionalization of rights has proved effective in
expanding the boundaries and protection of the private sphere, it
has utterly failed to promote progressive or egalitarian notions of
distributive justice in a meaningful way.”15
Judges thus have much hesitation “to diminish the stark disparities in lifeconditions
within and among polities in the neoliberal age.”16
According to Hirschl, the chances of success for a constitutional ‘putsch’
by the elites is more likely to succeed when the judiciary within a given society
has a better reputation for independence and professionalism amongst the
population when compared to the political class, and if at the same time the
interested elites largely control the judicial training and appointment process.17
The latter point is indeed the reason why the elites expect that their interests will
be actively served by the judiciary: the judiciary is perceived by the political and
economic elite as a trustworthy partner within the political ‘play’ since they
predictably mirror the cultural propensities and policy preferences of the elite.18
With these elements in hand, Hirschl also answers a second important
question which he put forward: when (i.e. at what moment) is constitutional
review introduced? The answer has in fact already been given above, namely
when societal conditions are of the kind which makes the elites fear soon being at
the mercy of the vox populi.
Interestingly, Hirschl’s argument strongly resembles Jean-Jacques
Rousseau’s (who Hirschl does not line up) word in his Discourse on the Origins
and the Foundations of Inequality Among Men (1755). Rousseau explains why the
state was founded and believes that this was mainly done in order to protect the
interests of the privileged classes: nation building as a ‘ruse of the rich’, a
confidence trick of the wealthy to consolidate their power. The ‘rich’ sell their
story under false pretences to the less well off men as follows:
“Let us join,” said he, “to guard the weak from oppression, to
restrain the ambitious, and to secure to every man the possession of
what belongs to him: let us institute rules of justice and peace, to
which all without exception may be obliged to conform; rules that
may in some measure make amends for the caprices of fortune, by
subjecting equally the powerful and the weak to the observance of
reciprocal obligations. Let us, in a word, instead of turning our
forces against ourselves, collect them in a supreme power which
15
Ibid., p. 14.
16
Ibid., p. 155.
17
Ibid., p. 44.
18
Ibid., p. 44.
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may govern us by wise laws, protect and defend all the members of
the association, repels their common enemies, and maintain eternal
harmony among us.”19
The cited phrase is a rather direct reference to the social contract doctrine of
Thomas Hobbes, which Rousseau strongly opposed. Having been enchanted with
the supposed advantages of state construction, Rousseau believed the people fall
wide-eyed into their chains while they thought they had secured their freedom.
The law thus imposes ‘new shackles’, giving even more power to the rich.
“The most capable of foreseeing the dangers were the very persons
who expected to benefit by them; and even the most prudent
judged it not inexpedient to sacrifice one part of their freedom to
ensure the rest; as a wounded man has his arm cut off to save the
rest of his body.”20
Hirschl’s argumentation thus remembers us of Rousseau, when the former says
that the introduction of judicial constitutional review in the countries he
researched (i.e. Canada, New Zealand, South Africa and Israel), is aimed at
securing the various elites’ interests by telling seducing stories about the
introduction of a culture of human rights. But in fact the behavior of these elites
are based upon a different and covert agenda; in particular it is about the judicial
embedding and securing of their own values and economic interests. And, at least
according to Hirschl, they succeed wonderfully well in doing so. About Israel, to
give but one example, Hirschl writes that:
“the judicial empowerment and judicialization of politics in Israel
can best be understood a planned strategy on the part of Israel’s
ruling elite and its bourgeois constituency (…) The primary
political motivation for this initiative was a strong interest in
preserving the political and cultural hegemony of the ruling elite
and its secular bourgeois constituency, as well as entrenching
Israel’s contested western, relatively cosmopolitan identity. (…)
[T]he forces behind Israel’s constitutional revolution were able to
transfer sensitive political and cultural issues to the legal arena and
reduce some of the growing costs they were being obliged to pay
19
J.J., Rousseau, On the Origin and Foundation of the Inequality Among Men, (Cole, GDH,
transl.), Cosimo, New York, 2005 (1755), p.78.
20
J.J. Rousseau, o.c., p. 79.
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in complying with the rules of the game of proportional political
representation.”21
For each of the other jurisdictions that Hirschl researches similar conclusions are
drawn.22
We will now analyze the political and legal dynamics of the introduction
and development of judicial constitutional review in Belgium and South Africa
respectively. We will subsequently see if the theory put forward by Hirschl can
explain the situation in these jurisdictions.
3. BELGIUM: FROM A MODEST COURT OF ARBITRATION TO A FULLYFLEDGED
CONSTITUTIONAL COURT
a. Features of the constitutional system
After the Napoleonic wars, the United Kingdom of the Netherlands was
established in the Low Countries in 1815. This kingdom encompassed the
(northern) provinces that nowadays constitute the Netherlands as well as the
(southern) provinces that now constitute Belgium. Support for the then King
William I’s policies was far less strong in the south than it was in the north. In the
south, Roman Catholics and liberals pursued greater liberty in shaping their own
identities: the Roman Catholics sought freedom of religion from the Protestant
north, while the liberals wanted to strengthen parliamentary democracy. In
addition, the Francophone population found it hard to stomach William’s Dutch
language politics. And southern underrepresentation in the States General, the
parliament, was sorely felt by many in the region too.23
These factors eventually came to a head when in 1830 the pursuit of
liberty sparked a revolution. A provisional government was formed and shortly
afterwards the National Congress was elected which drafted and promulgated the
founding Constitution of the Belgian Kingdom in 1831. Because of the French
Revolution and the Napoleonic occupation, these developments were largely,
though not exclusively, French in influence.24
Despite the fact that Belgium, like
its northern neighbour the Netherlands, has only ever had a single constitution
21
Hirschl, o.c., p. 74.
22
Ibid., p. 82 (Canada), pp. 88-89 (New Zealand) and pp. 96-97 (South Africa).
23
See G. Martyn, Geschiedenis van de politiek en het publiekrecht, Bruges, Die Keure,
2005, pp. 257-262, and E. Witte et al., Politieke geschiedenis van België. Van 1830 tot heden,
Brussels, VUBPress, 1997, pp. 19-22.
24
A careful analysis of the various influences on the Belgian Constitution can be found in J.
Gilissen, “Die belgische Verfassung von 1831. Ihr Ursprung und Einfluss”, in W. Conze (ed.),
Beiträge zur deutschen und belgischen Verfassungsgeschichte im 19. Jahrhundert, Stuttgart, Klett,
1967, pp. 38-69.
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since its founding, this document has been substantially amended in the course of
the country’s history chiefly to reflect the kingdom’s ethnic and linguistic
diversity (as well as to tone down the tensions that inevitably followed in the
wake of such heterogeneity). These developments will be described below, with
the emphasis being put on the role of the judiciary in upholding the Constitution.
b. A strict separation of powers qualified by international law
The original version of the Belgian Constitution was silent on judicial
constitutional review, as were any preparatory documents. How was this silence
to be interpreted? Had the drafters of the Constitution taken judicial constitutional
review for granted? Had the issue escaped their minds? Or should the absence of
relevant provisions be construed as implying that the judiciary lacked the
authority to review the constitutionality of legislation? The historical context
favors the latter. It is generally assumed that as a result of the confidence in the
legislature, a confidence that was inspired by the ideals of the French Revolution,
the drafters of the Belgian Constitution put their faith squarely in that body as the
sole legitimate representative of the people and as the exclusive interpreter of the
Constitution. So great was their trust in the legislative branch that the drafters of
the Constitution could not conceive of the legislature disrespecting their
constitutional limits. Even the very thought of such a transgression was
considered an unconscionable insult to the well-disposed legislature.25
This outlook was confirmed in 1849 by Belgium’s highest court, the Cour
de cassation (Court of Cassation), when it held that the strict separation of powers
denied it the competence to determine whether legislation was in keeping with the
Constitution.26
It was the duty of the courts to apply legislation in individual
cases, not to impair the legislature. The lower Belgian courts adopted this line of
reasoning, which soon proved to represent the consensus on the doctrine of
separation of powers.27
Still, an increasing number of jurists advocated judicial constitutional
review, but the doctrine of the separation of powers was not relaxed by testing
laws directly against the Constitution.28
However it did become possible for the
courts, as was the case in the Netherlands, to examine acts for compatibility with
international law. This competence was recognized and developed by the courts
themselves. More particularly, in the 1971 Franco-Suisse Le Ski case,29
the Court
25
R. Leysen and J. Smets, Toetsing van de wet aan de Grondwet in België, Zwolle, Tjeenk
Willink, 1991, p. 6.
26
Court of Cassation [Hof van Cassatie], 23 July 1849.
27
R. Leysen and J. Smets, o.c., p. 14.
28
Ibid., pp. 7-12 for an overview.
29
Court of Cassation, 27 May 1971, Pasicrisie Belge 1971, I, p. 886.
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of Cassation ruled that courts should give precedence to a directly effective
provision of international law over a national rule if these rules conflicted.
Although the Court thus refrained from expressing a view on the relationship
between national legislation and the national constitution as such, the effect of the
judgment was to acknowledge that legislation might be subordinate to higher (i.e.
international) law, thereby obliging the courts to observe the highest rule even in
the face of the legislature. Nevertheless, the issue of the powers of the judiciary
regarding the competence to perform constitutional review (including the
competence to nullify legislation) as such remained unresolved.
Three years later, in the Le Compte case, the Advocate-General with the
Court of Cassation took a similar position concerning the relationship between
national legislation and the Constitution: “When two acts of parliament or the law
and the Constitution are incompatible, is it not of the essence of the court’s
mandate to decide which must be applied if such a decision is required for the
court to pronounce judgment?”30
And:
“Is it reasonable and in accordance with the necessity of legal logic
that individuals must need to resort to international proceedings
when they feel one of their rights has been violated, while the
Constitution safeguards the right in question, but the courts cannot
legally ensure that right?”31
The Advocate-General argued that Belgium did not observe a strict separation of
powers as it was described, at least according to him, in Montesquieu’s De
l’Esprit des Lois, but rather used a system of checks and balances with all three
powers exercising a measure of control over each other:
“The principle of the separation of powers is just a way of dividing
public power in such a fashion that those who possess one of the
powers control each other within the limits of their respective
jurisdictions. Despite this principle and in the absence of an
[explicit] constitutional rule, the courts have obtained the
competence to, under certain conditions, examine the
constitutionality of legislation.”32
30
Court of Cassation, 3 May 1974, Arresten van het Hof van Cassatie 1974, p. 967,
including the opinion of Advocate-General W.J. Ganshof van der Meersch (authors’ translation).
In it, the Advocate-General used logic similar to that of the US Supreme Court in the famous case
of Marbury v. Madison. See Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
31
Opinion, l.c., p. 976 (authors’ translation).
32
Ibid.
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However, the Court of Cassation did not want to stretch the argument so far,
probably because it feared a political reproof for granting too much explicit power
to the courts. The Advocate-General’s position did indeed draw a response from
the political quarter: a group of senators submitted a legislative proposal explicitly
prohibiting the judicial review of constitutionality. Surprisingly enough, they too
referred to the separation of powers doctrine, yet they arrived at the opposite
conclusion:
“The legislature is the only one to enact legislation, and this
legislation applies to all. The judiciary is the only one to decide if
and how legislation should be applied to the disputes brought
before the courts. Its duty is not ‘to review legislation’, nor is it the
duty of the executive, which also exercises exclusive powers
within its jurisdiction, to decline to execute judicial decisions or
legislation it may consider ‘unconstitutionial’.”33
And so, instead of opting for a functional separation of powers – i.e. separating
the powers but not necessarily the institutions that exercise them – the senators
held on to the traditional view of conferring each competence exclusively to one
particular institution and purposefully avoiding any overlap. The aforemetioned
proposal prohibiting judicial constitutional review was unanimously carried by
the Senate, but it was never put to vote in the House of Representatives, which in
any case might have been fairly futile: ever since the aforementioned FrancoSuisse
Le Ski decision the immunity of legislation from judicial review had been a
thing of the past. At any rate, both in Belgium and the Netherlands constitutional
review developed along similar lines: judicial review was based on international
law, not on national law.
In the 1980s, however, Belgium began to steer a different course (away
from the Netherlands) as judicial constitutional review had come to be deemed a
political necessity. What had happened?
c. Federalism and judicial constitutional review34
Belgium’s transition in the 1970s and 80s from a unitary to a federal state
ultimately resulted in judicial constitutional review being accepted, initially solely
in order to resolve conflicts of competence between the different levels of
government. Belgium consists of two language communities of roughly the same
33
Parliamentary Proceedings, Belgian Senate, 1974-75, no. 602/1, p. 1 (authors’ translation).
34
See also M. Adams and D. Vanheule, “The Theory and Practice of Constitutional Review
in the Civil Law: The Case of Belgium” in L.J. Wintgens (ed.), The Theory and Practice of
Legislation: Essays in Legisprudence, Aldershot, Ashgate 2005, pp. 187-216.
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size, the Dutch-speaking part in the north and the French-speaking part in the
south. They are separated by a language border, which has also been laid down in
the Constitution, and as a result, Dutch is the official language in the north, and
French in the south. In addition, Brussels has been constitutionally recognized as
a bilingual area of Dutch and French speakers. Constitutional recognition has also
been granted to the small German-speaking part of the country bordering
Germany.
Tensions between these language communities are at the heart of the wish
for increased cultural, personal, and socio-economic self-rule. As of 1969, these
aspirations set off a series of reforms, creating two levels of constitutionally
recognized legislative and executive decision-making: the Communities
(competent in cultural, personal, and educational matters) and the Regions
(competent in territorial and economic matters). As there is no hierarchy of
legislative instruments enacted by the various entities of the Belgian state,
conferring these powers could cause conflicts of competence between the
Communities/Regions and the federal state. To resolve these conflicts, it was felt
a constitutionally created body was needed since leaving this to the parliaments
would lead to a situation of Belgium becoming ungovernable. Instead of assigning
this role to the existing courts, the initiators of a constitutional amendment of
1980 chose to set up a special court, the so called Cour d’Arbitrage (Court of
Arbitration), which would adjudicate on disputes between the various legislatures
of the federal Belgian state.35
The Court of Arbitration could thus check whether
legislation introduced by the Federal state, or the Communities or Regions was in
line with the competences that were assigned to them by the Belgian constitution.
The foundation of this institution (in 1983) was consistent with the
conventional skepticism in entrusting constitutional review to the regular courts.
This restraint is for example illustrated by the fact that the provisions on the Court
of Arbitration were incorporated into a separate chapter of the Belgian
Constitution thus setting the Court apart from the ordinary judiciary. Another
example of this reserve can be seen in the composition of the Court of Arbitration.
The twelve bench seats were evenly divided between Dutch-speaking and Frenchspeaking
Belgians, with at least one of the judges required to have an adequate
knowledge of German. But the originators of the Court of Arbitration also paid
particular attention to the background of these judges. Up to the present day, three
judges from each language group are former politicians, all of whom must have
served in a legislative assembly for at least five years. Through their work as
parliamentarians they are presumed to have developed the requisite skills to bring
35
P. Peeters, “Expanding Constitutional Review by the Belgian ‘Court of Arbitration’”, 11
European Public Law 2005, pp. 475-479; R. Leysen and J. Smets, Toetsing van de wet aan de
Grondwet in België, o.c., p. 39 et seq. See also J. Velaers, Van Arbitragehof tot Grondwettelijk
Hof, Antwerp, Maklu, 1990, pp. 34-74.
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their knowledge of political sensitivities to bear on their judicial duties.36
The
other judges are jurists from the Court of Cassation or the Council of State,
professors of law at Belgian universities, or clercks (called legal secretaries) with
the Court itself. The purpose of this mixed composition, seeking to balance theory
and practice, was to render the principle of judicial constitutional review palatable
to the legislature. In addition, these judges are appointed by the King on the
recommendation of one of the Houses of Federal Parliament in an effort to
partially obviate the democratic impediment to constitutional review by the
judiciary, namely that of unelected judges reviewing and nullifying legislation
created by the people’s chosen representatives. This procedure also disposed the
constitutional legislator more favourably towards establishing the Court of
Arbitration. Moreover, the required two-thirds majority for appointment proposals
was intended to make the Court of Arbitration reflect as accurately as possible the
political and ideological movements in the country. The creation of such a
specialised court was thus regarded as complying with the principle of the
separation of powers, and was aimed at dispelling fears of a gouvernement des
juges.37
d. Expansion of competence and judicial dynamics
As indicated, the Court of Arbitration was originally only authorised to verify
whether legislation enacted by the federal government, the Communities, or the
Regions was in accordance with the constitutional division of legislative powers.
In time, however, this jurisdiction of the Court of Arbitration gradually came to
expand, both formally and factually. For instance, since 1989 the Court was also
required to determine whether the right to equal treatment, the right not to be
discriminated, and the right to freedom of education were violated (encapsulated
in the Sections 10, 11, and 24 of the Belgian Constitution respectively).
The immediate cause for this expansion was the devolution of educational
powers from the Federal State to the Communities. The Roman Catholic minority
in the French-speaking part of the country and the liberal minority in the Dutchspeaking
part were greatly concerned that this devolution would subject the
organisation of their respective educational projects to considerable restrictions.
To put it differently, significant cultural-ideological minorities feared their
36
These court officials were not required to be jurists (unlike the other judges). It should be
noted that appointing ‘political’ judges to the Belgian constitutional court did meet with criticism
because of the lack of independence and impartiality this would allegedly bring about. See C.
Berx, Rechtsbescherming van de burger tegen de overheid, Antwerp, Intersentia, 2000, p. 246,
and L. Vermeire, “De oud-politicus als onpartijdig rechter in het Arbitragehof”, Rechtskundig
Weekblad 1986-87, p. 2441.
37
J. Velaers, Van Arbitragehof tot Grondwettelijk Hof, Antwerp, Maklu, 1990, pp. 419-420.
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freedom of education would be substantially restricted. That at the same time,
next to Section 24 of the Belgian Constitution, Sections 10 and 11 of the
Constitution were included – a concession to proponents of a wider-ranging
extension of the Court’s powers – does not detract from the immediate cause of
the expansion of the Court’s jurisdiction. Before, education had remained within
the federal field of competence, precisely because the two ideological minorities
were fearful of being marginalised.38
The Francophone christian democrats in
particular were explicitly adamant that they would only agree to the devolution of
educational powers to the respective Belgian ‘Communities’ if the right to
freedom of education were enshrined more firmly in the Belgian Constitution and
its observance could be reviewed by the Court of Arbitration.39
The notable feature of this development is of course that constitutional
review in Belgium was originally perceived as a practical necessity springing
from the country’s federalization. Yet the broadening powers of the Court of
Arbitration was not so much brought about by federalisation (and the ensuing
conflicts over powers) as such, as it was by the anxiety of substantial ideological
minorities over their rights no longer being adequately protected. But the wider
powers of the Regional and Communal legislatures also lead to another type of
constitional review in which the court’s competence went from a technical check
of powers (which in a federal nation no doubt also carries major political
sensitivities) to a substantive review of the meaning of equality and nondiscrimination
provisions. This development was all the more remarkable given
that the Court of Arbitration had been created amidst fears of a gouvernement des
juges, and that the aforementioned expansion of powers did in itself not seem to
be the most suitable step to allay these concerns. Remarkably enough, the
parliamentary proceedings nonetheless show that this fear had all but dissipated.
In fact, most parliamentarians welcomed the extended powers of the Court.40
Simultaneously, citizens were given the right to bring annulment actions
before the Court of Arbitration. They had previously not been able to do this
because it had always been assumed that ordinary citizens did not have an interest
38
G. Monard, “De overdracht van de onderwijsbevoegdheid naar de Gemeenschappen”, in
A. Alen and L.P. Suetens (eds.), Zeven knelpunten na zeven jaar staatshervorming, Brussels,
Story Scientia, 1988, p. 345.
39
For that reason, these conditions were expressly laid down in the coalition agreement of
21 October 1987. See ibid., p. 361.
40
Parlementaire Handelingen, Belgian Senate, 1988-89, 30 November 1988, 432 and
Parlementaire Handelingen, Belgian House of Representatives, 1988-89, 4 January 1989, 979.
See R. Leysen and J. Smets, Toetsing van de wet aan de Grondwet in België, o.c., 52-53. Yet
objections continued to be raised, and the limited expansion of the Court’s powers of review to the
three rights mentioned can be partially explained from this perspective: it was a compromise.
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in the legislative provenance of a particular regulation.41
However, from then on,
citizens could challenge any new legislative instrument before the Court of
Arbitration within six months of its promulgation. In specific disputes they may
also assert the unconstitutionality of applicable legislation before an ordinary
court of law, enabling or, as the case may be, obliging the court to refer the matter
to the Court of Arbitration for a preliminary ruling.
Along with the formal expansion of the Court’s powers, the Court itself
interpreted its powers broadly. For example, between 1989 and 2003, the Court
developed as its main responsibility to arbitrate disputes over breaches of the
equality and non-discrimination principles in Sections 10 and 11 of the Belgian
Constitution. In interpreting the equality principle, the Court of Arbitration drew
inspiration from decisions of the European Court of Human Rights, and the
Belgian Language Case in particular.42
The Court came to emphasise the crucial
importance of the principle of equality as being inherent to the Belgian legal order
as it developed its case law by stating that the principles of equality and nondiscrimination
apply to all rights and freedoms the Belgians are entitled to.43
This
statement was later construed to include the enjoyment of all rights and freedoms
granted under directly applicable international treaties as well.44
More recently,
the Court asserted that rights and freedoms guaranteed by international
instruments without any direct national effect should also be taken into account.45
In addition, the Court started to verify whether a contested provision wrongfully
infringes the principle of equal enjoyment of protection derived from what may be
called general legal principles (such as legal certainty and the non-retroactive
force of legislation).46
The Court even chose to apply the equality principle and
the ban on discrimination to the equal enjoyment of rights and freedoms
recognized by the legislature but not based on any constitutional provision, treaty
stipulation, or universal principle of law.
Equality, according to the Court, also implies the duty of the legislature to
introduce coherent laws which reflect the equality before the law of all members
of society by taking their separate interests into account and integrating it into the
41
Initially, annulment proceedings could only be instituted by the Federal Cabinet, a
Regional or Communal government, the chair of the legislative assembly, or two thirds of the
members of a legislative assembly.
42
European Court of Human Rights, case Relating to Certain Aspects of the Laws on the
Use of Languages in Education in Belgium v. Belgium of 23 July 1968, Publ. Eur. Court H.R.,
Series A, no. 6, para. 10.
43
Court of Arbitration no. 23/89, 13 October 1989.
44
Court of Arbitration no. 4/96, 9 January 1996.
45
Court of Arbitration no. 41/2002, 20 February 2002; Court of Arbitration no. 189/2004,
24 November 2004.
46
Court of Arbitration no. 18/90, 23 May 1990; Court of Arbitration no. 24/96, 27 March
1996.
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legislative process. Within the framework created by the legislature and giving
due consideration to these interests, legal norms must succeed in reaching those
categories of people the legislature wants to address. This duty allows the Court to
identify passive discrimination resulting from gaps in the applicable legislation,
and can thus oblige the legislature to act. The principle of equality therefore
necessarily entails coherence. The legal norm itself can only remain in force,
insofar as it is constitutional and appropriate to the party not discriminated
against, but at the same time the legislature is implicitly compelled to apply the
law equally to those who had at first been disregarded.47
Through its non-restrictive reading of the general ban on discrimination in
Sections 10 and 11 of the Constitution, the Court of Arbitration has undeniably
enlarged the span of its jurisdiction to cover virtually all kinds of discrimination
regarding the enjoyment of freedoms and rights. As a result of the broad scope of
Sections 10 and 11, most provisions of the Constitution can also be reviewed
indirectly: as everyone has fundamental rights, infringement of a fundamental
right automatically constitutes an infringement of the principles of equality and
non-discrimination, so the Court argued.48
However, this led to artificial
constructions needlessly complicating both theory and practice49
, since
infringements of fundamental rights always had to be adjudicated through the lens
of Sections 10 and 11 of the Belgian Constitution. To simplify matters, in 2003
the Belgian constitutional legislature therefore decided to formally extend the
review powers of the Court of Arbitration to include, especially, all the rights and
freedoms listed in Title II of the Belgian Constitution (“On Belgians and Their
Rights”) and to a number of other constitutional provisions.50
Finally, in 2007, the
Court’s name was changed, because as this brief overview shows its name had
become inadequate: the Court was no longer an arbiter in disputes between the
various federal entities of the Belgian state, but a fully-fledged court of
constitutional review.51
Empirically, however, the signal role of the Court is
without a doubt its jurisdiction over Sections 10 and 11 of the Belgian
Constitution. The majority of its decisions concerns these provisions even today.
It may be relevant to mention here the Court’s extensive conception of
review for compliance with the provisions of Title II of the Belgian Constitution
and its related practice of reviewing for compliance with analogous treaty
47
Court of Arbitration no. 31/96, 15 May 1996.
48
Court of Arbitration no. 136/2004, 22 July 2004.
49
Parlementaire Handelingen, Belgian Senate, 2000-2001, no. 2-897/1, 2-3; P. Peeters, l.c.,
p. 483.
50
Act of 9 March 2003.
51
Act of 7 May 2007 amending the Constitution: “In Article 142, first paragraph of the
Constitution the words ‘Court of Arbitration’ will be replaced by the words ‘Constitutional
Court’.” Belgisch Staatsblad (Belgian Official Journal) of 8 May 2007, p. 25101 (authors’
translation).
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provisions. The Court has followed this line since its decision in case 136/2004 in
which it argued:
“Pursuant to Section 26, paragraph 1, under 3 of the Court of
Arbitration Act of 6 January 1989, amended by the Act of 9 March
2003, the Court is authorised to review legislative norms by way of
preliminary ruling for compliance with the provisions of Title II
“On Belgians and Their Rights” and with Sections 170, 172, and
191 of the Constitution. However, when the scope of a treaty
provision binding on Belgium is analogous to that of one or more
of the above-mentioned constitutional provisions, the safeguards
contained in that treaty provision form an integral part of the
safeguards included in the constitutional provisions concerned. The
infringement of a fundamental right automatically constitutes an
infringement of the equality and non-discrimination principle. It
follows that when an infringement is asserted of a provision of
Title II or of Sections 170, 172, or 191 of the Constitution, the
Court in its examination takes into account international legal
provisions that safeguard analogous rights or freedoms.” 52
Summarising, it may be said that, firstly, the division of legislative power among
several federal entities signified the end of the strict separation of powers in
Belgium. Through the Court of Arbitration, the judiciary had to keep the peace
between the various legislatures. The then prevailing doctrine in Belgium viewed
judicial review of constitutionality with reserve and caution, but practical
necessity nevertheless exacted change. As a result, in addition to being a political
instrument, the Belgian Constitution became a robust legal document. Secondly,
by the late 1980s, the formal extension of its powers spurred the Belgian Court of
Arbitration to develop its own internal dynamics initiating a steady substantive
expansion of its powers. The legislature did not speak out against this evolvement.
Thirdly, and finally, the Court’s formal powers were extended to include all
provisions of Title II of the Belgian Constitution (“On Belgians and Their
Rights”). As a consequence, the rationale for the establishment of the Court of
Arbitration has become immaterial: the raison d’être of the Court is no longer the
federalisation of the Belgian state alone, but just as much the judicial protection of
its citizens and their fundamental rights. Eventually, the name Court of
Arbitration was changed to Constitutional Court in order to do justice to its
present powers.
52
Court of Arbitration no. 136/2004, 22 July 2004 (author’s translation).
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4. SOUTH AFRICA: JUDICIAL CONSTITUTIONAL REVIEW AS A FACILITATOR
OF TRANSFORMATION
a. Features of the constitutional system
Unlike Belgium and the Netherlands, each of which only ever had a single
constitution since the Napoleonic wars - albeit drastically amended in the course
of time - South Africa has had several constitutions. It has had five constitutions,
to be precise, since the country’s formation, after the Second Anglo-Boer War of
1899 to 1902, from British colonies and defeated Boer republics. Whereas in
Belgium the legislature had long been responsible for interpreting and applying
the constitution, and only gradually and reluctantly conceded ground to the
judiciary, the South African constitutional system underwent an abrupt, two-stage
transition.53
In the first stage, from 1910 to 1994, the successive constitutions were the
manifest instruments of elected politicians. In the second stage, from 1994
onwards, the social and legal order has come to rest on constitutions whose
interpretation and application are also determined by the courts. This reversal was
not so much the result of a natural evolution as it was of a sudden and crucial
alteration of the role of the judiciary. In this part, the two stages will be examined,
with the focal point being the changing relationship between the South African
constitutions and the judiciary.
b. Parliamentary supremacy and limited democracy
The South Africa Act of 1909 was passed by the British parliament and for all
intents and purposes served as the Constitution of South Africa.54
It had been
chiefly drafted by the all-white National Convention which after the Anglo-Boer
War had been charged with designing a common future for the two British
colonies, the Cape and Natal, and the two Boer republics, the South African
Republic and the Orange Free State. The South Africa Act of 1909 established the
Union of South Africa by transforming these four territories into provinces of the
newly-created country.
As an overt political document in the time-honored Westminster tradition,
it was devoted almost entirely to the creation of the state and its institutions, and
thus, a bill of rights had not been included. Nor had the South African courts been
53
See I.M. Rautenbach and E.F.J. Malherbe, Constitutional Law, 4th ed., Durban,
Butterworths, 2004, pp. 13-19. For a historical overview see P.N. Bouckaert, “The negotiated
revolution: South Africa’s transition to multiracial democracy”, 33 Stanford Journal of
International Law 1997, pp. 375-411.
54
South Africa Act, 9 Edw. VII, C 9.
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empowered by the British constitutional legislature to review constitutionality of
legislation, although the majority of delegates to the National Convention had
interestingly enough been in favor.55
The constitutionally established legislature
was thus a typical example of parliamentary sovereignty, even if it functioned
under the authority of Westminster (since full independence would only come in
1931).
As in the United Kingdom everyone was considered to enjoy extensive
common-law rights and freedoms, which is why many held it superfluous to have
a bill of rights.56
These rights and freedoms could be exercised insofar as they
were not restricted by the legislature which meant that the constitutional system
was firmly based on a specific democratic premise: citizens were free to the
extent that their liberty was unaffected by the will of the people as expressed by
the people’s chosen representatives. Consequently, the legislature could largely
qualify liberties at its discretion, as it was only accountable to the electorate. So a
heavy burden of responsibility came to lie with the national parliament as great
faith was placed in the democratic process.
But the South African constitutional system had one major failing, namely
that the quality of the nation’s democracy was significantly impaired by the
limitations on the right to vote. Only whites could be elected to parliament, and
each new province retained its voting conditions that had been in force before its
incorporation into the Union. As a result, non-racial citizenship remained in effect
in the Cape, but in the other provinces the right to vote continued to be reserved
for white people only. And although the constitution itself could be amended by a
simple majority of votes, the provision regulating this as well as the provision
guaranteeing equal status to Dutch (later Afrikaans) and English language were
protected by a qualified majority. These provisions could only be amended by a
two-thirds majority of votes in a joint session of both Houses of Parliament.
Preparations were underway to remove black South Africans from the
voters’ roll in the Cape, and in 1936 a law to this effect was enacted.57
With racial
discrimination being formalized in the form of apartheid, an attempt was also later
made to remove ‘coloured’ voters from the common roll as well. Despite the
required qualified majority not having been secured this time, parliament adopted
a bill relegating ‘coloured’ voters in the Cape to a separate list by removing them
from the common voter’s roll.58
Almost inevitably, the Appellate Division of the
55
Z. Motala and C. Ramaphosa, Constitutional Law: Analysis and Cases, Oxford, Oxford
University Press, 2002, p. 2.
56
See R. Singh, The Future of Human Rights in the United Kingdom, Oxford, Hart
Publishing, pp. 5-14, on the concept of common law rights.
57
Representation of Natives Act, no. 12 of 1939. See J. Dugard, Human rights and the
South African legal order, New Jersey, Princeton University Press, 1978, p. 29.
58
Separate Representation of Voters Act, no. 46 of 1951.
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Supreme Court invalidated the Act, because the constitutionally established
procedure had not been respected.59
The National Party government responded by
creating the High Court of Parliament.60
This body was comprised of all members
of parliament and decided on the validity of legislation nullified by the courts.
However, the act of parliament establishing this body was also annulled by the
Supreme Court, as the High Court of Parliament was parliament thinly disguised
as a court and because the relevant constitutional provisions could not simply be
ignored, otherwise they would become a dead letter.61
The ruling party was on the
horns of a dilemma, since it could not muster the required two-thirds majority to
pass legislation in accordance with the Constitution. Instead, it enacted ordinary
legislation to enlarge both the Senate and the Appellate Division, thus
maneuvering itself into a position to up the numbers of its allies in both bodies.62
The South Africa Amendment Act could now be enacted without any further
complications: ‘coloured’ voters were registered on a separate roll, while the
courts were explicitly denied the authority to review the constitutionality of
legislation.63
In this way, any remaining doubts about the nature of the constitution of
1909 were dispelled. It was now perfectly clear that the courts were not meant to
become involved in constitutional matters, not even when parliament chose to
disregard the Constitution. This state of affairs would endure until the enactment
of the Constitution of the Republic Act of 1961, which replaced the Constitution
of 1909 and created a republican form of government. Section 59 of the 1961
Constitution unequivocally provided that “parliament shall be the sovereign
legislative authority” adding that the courts were barred from pronouncing on the
validity of acts of parliament. This provision was clearly addressed to the courts
that were supposed to be charged with applying and obeying the law, not
questioning it.
More so now than ever before, the government could implement its policy
of apartheid in all areas of life. The concept of self-governing territories for the
black population (the homelands) became a sad reality. For internal purposes, for
instance, the National States Citizenship Act granted citizenship of the various
homelands to the African population on the basis of ethnicity, regardless of
whether the persons concerned were born or actually resided in them.64
As soon
59
Harris v. Minister of the Interior, 1952 2 SA 428 (A). On this, see E. Griswold, “The
‘coloured vote case’ in South Africa”, 65 Harvard Law Review 1952, pp. 1361-1374.
60
High Court of Parliament Act, no. 35 of 1952.
61
Minister of the Interior v. Harris, 1952 4 SA 769 (AD). On this, see E. Griswold, “The
demise of the High Court of Parliament in South Africa”, 66 Harvard Law Review 1953, pp. 864-
872.
62
Senate Act, no. 53 of 1955; Appellate Division Quorum Act, no. 27 of 1955.
63
South Africa Act Amendment Act, no. 9 of 1956.
64
National States Citizenship Act, no. 26 of 1970.
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as the South African parliament had granted “independence” to a territory, its
residents lost their South African nationality. Millions of people were thus
deprived of South African nationality against their will. In spite of all failure and
domestic as well as foreign opposition to the discriminatory policy of apartheid,
the government persisted in carrying out racial segregation. It tightened its grip on
the country by putting down dissidence, for example by prohibiting many public
meetings and several political parties, as well as by exiling or incarcerating
opponents.65
However political unrest increased, especially towards the latter part
of the 1970s.
Still, in order to gain support, the government wanted to broaden the social
foundation of its institutions and tried to consolidate its power through modest
reforms, such as a new constitution created by the Republic of South Africa
Constitution Act of 1983.66
The Constitution of 1983 retained the principle of
parliamentary sovereignty and again did not contain a bill of rights. Unlike
previous constitutions, however, the new constitution included the office of a
powerful executive state president and extended the scope of citizenship to
include “coloured” and Indian communities for the purpose of electing a
tricameral parliament. Each of the three population groups (white, ‘coloured’, and
Indian) had its own chamber of parliament, which had jurisdiction over matters
pertaining to its own group. Yet, as before, true power rested with the all-white
House of Assembly, which continued to dominate the political landscape.67
The Constitution of 1983 and a few superficial reforms were utterly
insufficient to redress the fundamental iniquities so deeply ingrained in South
African society. In the 1980s, violent opposition to the apartheid regime had
virtually spiraled out of control and a state of emergency was becoming the order
of the day. Thirty years of violence – better known as “the struggle” – between
liberation movements and the government had resulted in a costly stalemate with
large parts of South Africa verging on anarchy. Apartheid had become too
expensive and could not be sustained with cosmetic surgery. In addition, reformminded
leaders were gaining the upper hand in parliament. The system was facing
a legitimacy crisis which could only be tackled by introducing drastic
constitutional changes.
65
J. Dugard, Human Rights and the South African Legal Order, o.c., pp. 53-202.
66
Republic of South Africa Constitution Act, no. 110 of 1983.
67
H. Klug, “Historical background”, in M. Chaskalson, J. Kentridge, J. Klaaren, G. Marcus,
D. Spitz, and S. Woolman (eds.), Constitutional law of South Africa Revision Service 5, Kenwyn,
Juta, 1999, pp. 2-10.
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c. Constitutional supremacy and universal suffrage
Efforts at constitutional change and democratization gained strength when Nelson
Mandela was released in 1990, the prohibition of liberation movements was lifted
and calls for negotiations between the various parties were raised. Circumstances
for a full democracy were propitious, but which form should it take?
In 1991, the Convention for a Democratic South Africa (Codesa) met to
address this issue.68
Codesa consisted of most political organizations and also
other interest groups. However, it soon become apparent that views on issues such
as the form of government, the sharing of power, the extent of government
interference in the economy, and the protection of private property were poles
apart. Although general agreement was reached on the drafting of a new
constitution by democratically elected representatives of the people, participants
were deeply divided over the details on who should act as a provisional
parliament.
A particularly thorny issue was how a new constitution should reflect the
national balance of power. The African National Congress (ANC), the largest
liberation movement, pressed for a democratically elected body that would have
ample room to draft a constitution; whereas the government and the smaller
parties made out a case for strict guidelines that this body would have to observe
in drawing up a constitution. These smaller players feared that if a democratically
elected body were to have free reign that the constitution would only reflect the
views of the victors and not those of the losing side and sizeable political
minorities as well. In other words, one of the pivotal questions concerning a new
constitutional future for South Africa was how the will of the democratic majority
could be contained so as to prevent it from deteriorating into a tyranny of the
majority.
In the end, Codesa failed, which led to renewed violence and instability.
But great national and international pressure ensured that the most important
players resumed negotiations in what was known as the Multi-Party Negotiation
Process. The ensuing tentative political agreement resulted in the tricameral
parliament adopting the historic Constitution of the Republic of South Africa Act
of 1993 (the Constitution of 1993).69
This document was referred to as the
transitional Constitution, as it was intended to create the required democratic
foundation for negotiating and concluding the final Constitution. One of its main
68
On this, see G. Devenish, “The interim Constitution in the making”, 60 Tydskrif vir
Hedendaagse Romeins-Hollandse Reg 1997, pp. 612-613, and H. Corder, “South Africa’s
transitional Constitution”, Public Law 1999, pp. 291-297.
69
Constitution of the Republic of South Africa Act, no. 200 of 1993. A.J. Steenkamp, “The
South African Constitution of 1993 and the Bill of Rights: an evaluation in light of international
human rights norms”, 17 Human Rights Quarterly 1995, pp. 101-126.
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achievements was to abolish the doctrine of parliamentary sovereignty once and
for all. Section 4(1) of the 1993 Constitution stipulated that:
“This Constitution shall be the supreme law of the Republic
and any law or act inconsistent with its provisions shall, unless
otherwise provided expressly or by necessary implication in this
Constitution, be of no force and effect to the extent of the
inconsistency.”
An enforceable Bill of Rights was included for the first time, and a Constitutional
Court was established to ensure the application of the Constitution, while a
number of existing courts were also granted certain powers of review.
Additionally, it was decided that multiracial elections had to be organized for a
new, bicameral parliament. It fell to the two Houses of Parliament together
constituting the Constitutional Assembly to draft and adopt a definitive
constitution. The newly created Constitutional Court was authorized to verify
whether the final Constitution adopted by the Constitutional Assembly complied
with the 34 Constitutional Principles set out in Schedule 4 to the 1993
Constitution. These principles, described as the solemn pact, represented the core
values of the new democratic order and it was imperative that they also be
reflected in the final Constitution.70
The principles included the requirement to
establish a democracy characterized by equality and fundamental rights, and
based on the separation of powers and the supremacy of the constitution. The role
of the new Constitutional Court was so crucial that it could even reject a new
constitution submitted by the Constitutional Assembly if the document did not
comply with the fundamental principles laid down in the transitional Constitution
of 1993.
Following the peaceful elections of 1994, the provisional and non-racial
parliament started the process of drafting the definitive Constitution – a process
more favored by circumstances than the gestation of the provisional Constitution
had been. For the first time, the proportionally elected, non-racial parliament
mirrored the national support for the political players. This inevitably held true for
the composition of the Constitutional Assembly as well, and it conferred muchneed
legitimacy on the public institutions that were to shape the new democracy
and, in particular, the definitive Constitution. The Constitutional Assembly could
now dedicate itself to the task of drafting the final Constitution in keeping with
the Constitutional Principles, without being paralyzed by fears of the nation
succumbing to violence. It was generally felt that the country had passed the point
of no return. The process had to succeed, and it did. In 1996, a constitutional text
70
See F. Venter, “Requirements for a new constitutional text: the imperatives of the
Constitutional Principles”, 112 South African Law Journal 1995, pp. 32-44.
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was adopted and submitted to the Constitutional Court, but approval was withheld
because of ten defects, in response to which the Constitutional Assembly
renegotiated and redrafted the text, which was then approved by the
Constitutional Court.71
And so, the final Constitution of South Africa came into
being. It ensured constitutional supremacy and universal suffrage, as opposed to
the old constitutional foundation of parliamentary supremacy and limited
democracy. A negotiated revolution had taken place, resulting in a new order
based on human dignity, equality, and the general improvement of human rights.
In this new order the Constitution is paramount. It is not merely a set of guidelines
that may (or, as it happens, may not) be observed in the political process, but it is
a legal document which the legislature itself must adhere to. In rising to the
occasion, the Constitutional Court embarked on its mission by actively trying to
define the significance of the Constitution on a host of issues72
, and probably most
interestingly the adjudication of socio-economic rights.73
d. Judicial dynamics
In the eyes of the Court, it has a special responsibility concerning socio-economic
rights and in righting the historic wrongs of racial discrimination. For instance, in
Government of the RSA v. Grootboom, the Court ordered the state to provide
emergency housing for a group of homeless people after they had been evicted
from private land.74
The Court ruled that if state measures fail to make provision
for the needs of those homeless whose needs are the most urgent it would
constitute an infringement of the right of access to adequate housing as laid down
in Section 26 of the Constitution. However, the Court refrained from formulating
a claim to immediate shelter. Instead, it chose to verify whether the measures
taken by the state to progressively realise adequate housing were reasonable. In
doing so, the Court demonstrated that it did not aim to substitute judicial decisions
for the priorities of political bodies, but wanted to check the state’s compliance
with its positive obligations towards the population.
71
Certification of the Constitution of the Republic of South Africa, l.c., para. 482.
Certification of the Amended Text of the Constitution of the Republic of South Africa, 1997 1
BCLR 1 (CC), 1997 2 SA 97 (CC). See J. Sarkin, “The drafting of South Africa’s final
Constitution from a human rights perspective”, 47 American Journal of Comparative Law 1999,
pp. 67, 70-71, and A. Cockrell, “The South African Bill of Rights and the ‘duck/rabbit’”, 60
Modern Law Review 1997, pp. 513, 514-517.
72
Such as the death penalty (S. v. Makwanyane, 1995 3 SA 391 (CC), 1995 6 BCLR 665
(CC)) and the recognition of same-sex marriage (Minister of Home Affairs v. Fourie; Lesbian and
Gay Equality Project v. Minister of Home Affairs, 2006 3 BCLR 355 (CC)).
73
See also R. Malherbe, “The development of socio-economic rights in South Africa”, 60
Zeitschrift für öffentliches Recht 2005, p. 111.
74
Government of the RSA v. Grootboom, 2001 1 SA 46 (CC), 2000 11 BCLR 1169 (CC).
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In City Council of Pretoria v. Walker the Constitutional Court held that the
Pretoria City Council was justified in levying residents of historically black
townships on the basis of a comparatively low uniform or ‘flat’ rate for water and
electricity in every household, whereas households in historically white suburbs
were levied consumption-based or meter-based tariffs.75
This differentiation was
legitimate, because the respondent belonged to a formerly privileged community
(the white minority) and was not himself disadvantaged by the black community
benefiting from different and lower rates. The Court also emphasized that crosssubsidization
of communities was not necessarily objectionable. In other words,
the white community had to learn to accept contributing towards the socioeconomic
uplifting of the black community as white people had benefited from
apartheid to the detriment of their fellow black compatriots. Differential treatment
was also acceptable, because the city council would discontinue differentiation as
soon as actual consumption could be measured in the former black townships.
These and other ‘social’ decisions of the Court have been frequently
commented on, approvingly as well as critically (with critics complaining that the
Court did not press ahead far enough).76
Whatever the case may be, these
decisions show that the judicial review of constitutionality can serve to develop
the socio-economic claims of the majority of the population.77
In this the South
African Constitutional Court is generally perceived to be of the most progressive
in the world.
Judicial decisions on the protection of private property are also interesting.
Section 25(1) of the South African Constitution prohibits the arbitrary
expropriation of private property in the following terms: “No one may be
deprived of property except in terms of law of general application, and no law
may permit arbitrary deprivation of property.” On the other hand, this Section
contains a number of provisions dealing with the restitution and reallocation of
property (land, mostly). In the First National Bank decision, it was decided that
75
City Council of Pretoria v. Walker, 1998 2 SA 363 (CC).
76
For praise see, e.g., C. Sunstein, “Social and economic rights? Lessons from South
Africa”, 11 Constitutional Forum 2000-01, p. 123; S. Liebenberg, “The right to social assistance:
The implications of Grootboom for policy reform in South Africa”, 17 South African Journal on
Human Rights 2001, p. 232. For critical comments see D. Bilchitz, “Giving socio-economic rights
teeth: The minimum core and its importance”, 119 South African Law Journal 2002, p. 484.
77
See also Premier v. Mpumalanga v. Executive Committee, Association of State-Aided
Schools, Eastern Transvaal, 1999 2 SA 83 (CC); Permanent Secretary, Department of Education
and Welfare, Eastern Cape and Another v. Ed-U-College (PE) (Section 21) Inc., 2001 2 SA 1
(CC), T. Roux, “Legitimating transformation: Political resource allocation in the South African
Constitutional Court”, in S. Gloppen, R. Gargarella, and E. Sklaar (eds.), Democratization and the
Judiciary: The Accountability Function of Courts in New Democracies, London/Portland, Frank
Cass, 2004, p. 92, and H. Klug, “South Africa: From constitutional promise to social
transformation”, in J. Goldsworthy (ed.), Interpreting Constitutions: A Comparative Study,
Oxford, Oxford University Press, 2007, pp. 266.
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the purpose of Section 25 “has to be seen both as protecting existing private
property rights as well as serving the public interest, mainly in the sphere of land
reform but not limited thereto, and also as striking a proportionate balance
between these two functions.”78
Notice can also be taken of Section 9(2) of the
Constitution, which stipulates that equality “includes the full and equal enjoyment
of all rights and freedoms” and that to “promote the achievement of equality,
legislative and other measures designed to protect or advance persons, or
categories of persons, disadvantaged by unfair discrimination may be taken.” The
Court explicitly recognizes that this implies policies of affirmative action as
envisaged by the Constitution, even where such action may jeopardize the private
interests of people from formerly privileged segments of society.79
It is important to note that the Constitutional Court insists that it must
endeavor to interpret the Constitution, instead of simply following the personal
preferences of judges or the will of the (political) majority. As the first president
of the Constitutional Court argued in S. v. Makwanyane, if the will of the majority
had to be a court’s only guide there would be no need for constitutional
adjudication in South Africa and one could just as well leave the protection of
rights to parliament and its democratic mandate, a move which would obviously
betray the new constitutional order which had turned its back on parliamentary
sovereignty.80
The duty of the Court is clearly to interpret the Constitution
without fear or favor by basing its judgments on the values it has to uphold and
not so much on the political views of the day.81
This is because the legislature,
and the legislature alone has to set the policy agenda, yet in doing so even it will
have to observe the Constitution. A point that was made vividly clear in respect of
socio-economic rights in the case Treatment Action Campaign:
The Constitution contemplates rather a restrained and focused role
for the courts, namely, to require the state to take measures to meet
its constitutional obligations and to subject the reasonableness of
these measures to evaluation. Such determinations of
reasonableness may in fact have budgetary implications, but are
not in themselves directed at rearranging budgets. In this way the
78
First National Bank of SA t/a Wesbank v. Commissioner for the Minister of Finance,
2002 4 SA 768 (CC), 7 BCLR 702 (CC), para. 50.
79
Bato Star Fishing (Pty) Ltd. v. Minister of Environmental Affairs and Tourism, 2004 4
(SA) 490 (CC), 2004 (7) BCLR 687 (CC), paras. 74, 76.
80
S. v. Makwanyane, l.c., para. 88.
81
In S. v. Mhlungu, 1995 3 SA 867 (CC), 1995 7 BCLR 793 (CC), para. 111, the Court
stressed that a pure positivist, technical and value-free approach had to be avoided as it would be
repugnant to the values of the Constitution.
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judicial, legislative and executive functions achieve appropriate
constitutional balance.82
It would appear that the Constitutional Court is trying to steer a middle course
between acknowledging individual rights enshrined in the Constitution and the
necessity, also expressed in the Constitution, to repair the inequalities inherited
from the past. One could say it is a path between a hurried transformation and the
need to realize a balanced execution of this transformation. The Court performs
this delicate balancing act in many of its decisions.83
But it also clearly articulates
its view on who in a democracy should ultimately achieve this transformation,
namely elected members of parliament. The main duty of the Court is thus to
check the legislative wisdom of parliament on the basis of interpreting the
Constitution. And it is the South African Constitution itself that requires the
government to effect transformation, leaving the Court constitutionally beholden
to verify whether the government does so.
5. AN OVERSTATED EXPLANATION?
Can the theory put forward by Hirschl (see section 2) explain the situation in
Belgium and South Africa as far as the introduction of judicial constitutional
review is concerned? How does the development of judicial constitutional review
in Belgium and South Africa relate to Hirschl’s theory?
As we saw in section 4 of this article, in South Africa the notion of
parliamentary sovereignty and the corresponding rejection of a bill of rights had,
during the apartheid years, been (ab)used in order to preserve the white regime.
Abandoning that notion through instituting judicial constitutional review proved
later, after the demise of apartheid, to be one way of leaving the past behind. It
was thus not just a way of covertly safeguarding elitist interests. At the very least,
it also symbolized and confirmed a clear break with the past which allowed the
South African Constitution to achieve a position of solidity and independence,
away from the erratic workings of power. And this was especially significant
since it was exactly the notion of parliamentary sovereignty that had been abused
to keep up with the apartheid regime. In any case, the history of South Africa
shows that the development to a judicially entrenched constitution (by means of
82
Minister of Health and Others v. Treatment Action Campaign and Others (no. 2), 2002
10 BCLR 1033 (CC), 2002 5 SA 721 (CC), para. 38.
83
See H. Botha, “Transforming state and society: from the public/private dichotomy to
mutual cooperation and destabilisation”, in G. van der Schyff (ed.), Constitutionalism in the
Netherlands and South Africa. A Comparative Study, Nijmegen, Wolf, 2008 (includes copious
references to judicial decisions).
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introducing judicial constitutional review) had, and still has, immense meaning
for the formerly oppressed masses.
In the light of court decisions on socio-economic rights, it can hardly be
maintained that only the interests of the erstwhile ruling echelon are served and
that the South African Constitutional Court does not envision a ‘transformative’
task for itself.84
Of course, opinions may differ on the question of which
institution should handle transformative policy-making - the judiciary or the
legislature - and how far its powers should extend.85
In this respect, Hirschl
declares himself an opponent of judicial constitutional review: the courts should
not have the authority to determine “the very definition and scope of a given
polity’s constitutive values”86
, since there is no consensus about either the content
or even the existence of these values. It therefore better be the chosen legislature
that deals with these issues. That might as well be dubbed a democratic argument
in favor of parliament. At the same time Hirschl’s critical stance against the courts
appears to be driven by a rather particular ambition for what constitutes a just
society. “The best institutional structure is the one best calculated to produce the
best answers to the essentially moral question of what the democratic conditions
actually are, and to secure stable compliance with those conditions.”87
An
aspiration he feels to which South African courts do not contribute in the way
they should according to him. So not so much, or so it seems, the fact that the
courts have too big an impact is why Hirschl declares himself an opponent of
judicial constitutional review, but the fact that constitutional courts decide the
way they actually decide (i.e. not, according to him, in favor of egalitarian
values). His appraisal of the judicial reality in for example South Africa is
therefore ultimately grounded in the fact that the South African Constitutional
Court does not, according to him, adequately meet the needs of the masses. But
such an assessment is debatable since the South African Constitutional Court does
84
See on this C. Sunstein, “Social and economic rights? Lessons from South Africa”, 11
Constitutional Forum 2000-01, p. 123. The term ‘transformative’ is inspired by K. Klare, “Legal
Culture and Transformative Constitutionalism” 14 South African Journal on Human Rights 1998,
pp. 146-188: “By transformative constitutionalism I mean a long-term project of constitutional
enactment, interpretation, and enforcement committed (...) to transforming a country’s political
and social institutions and power relationships in a democratic, participatory, and egalitarian
direction.” p. 150.
85
On who should be primarily responsible for policy-making in this context, see, e.g., M.
Wesson, “Grootboom and Beyond: Reassessing the Socio-Economic Jurisprudence of the South
African Constitutional Court”, 20 South African Journal on Human Rights 2004, pp. 284-308.
86
R. Hirschl, o.c., p. 188. In this context he strongly accentuates the fight over inclusion of
property rights in the constitution. See pp. 94-95.
87
Ibid., o.c., p. 3. Quoting R. Dworkin, Freedom’s Law, Cambridge (Massachusetts),
Harvard University Press, p. 34.
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indeed take important steps to promote equality and socio-economic rights.88
And
it does so more progressively than anywhere else in the world.
In Belgium, as we saw, judicial constitutional review was first and clearly
adopted as a method to resolve conflicts over legislative competence between the
various regions and communities of the Belgian federal state. The establishment
of it was necessary, so it was perceived, to keep the country governable: this was
an issue of installing political stability to the country by non-political means. In
1989 the review powers of the Constitutional Court were extended to include
freedom of education and the principles of equality and non-discrimination. This
extension indeed served the interests of two major ideological minority groups
(denominational and non-denominational) in both Flanders and Wallonia
respectively, particularly regarding the freedom to organize their own educational
programs. However, these interests were not obliquely referred to or implicitly
acknowledged, but explicitly voiced; there was no hidden agenda.
At the same time, the Belgian Constitutional Court does in fact
demonstrate strong dynamics sui generis in its decisions and it seems thus
insusceptible to serving the interests of the elites, despite the close connection
Hirschl postulates between the goals and hopes of these elites and the behaviour
of judges. It moreover appears improbable that the internal dynamics that the
Belgian constitutional court has shown through its decisions in recent years had
been anticipated by them. In any case, in Belgium, as it turns out, the body politic
relinquished part of its leeway to the Constitutional Court: Political control of the
Court is very limited. So although the Belgian constitutional judges are indeed
appointed by the legislative assembly (some are even former assembly members),
once appointed they forge their own way. Therefore, Hirschl elitist model cannot
fully explain the independent dynamics of judicial constitutional review in
Belgium.
88
Hirschl’s analytical distinction between positive ‘claim’ rights and negative ‘classic’
rights (see paragraph II of this article), with negative rights barely imposing obligations on the
government according to him, cannot be maintained in practice either. This is because also
negative rights can give rise to positive obligations for the state (e.g. in terms of financial claims).
If, for instance, heterosexual couples are granted certain rights, the government may be obliged to
confer certain benefits on homosexual too, as happened in the South African Satchwell case
(2002). In this case, the Judges’ Remuneration and Conditions of Employment Act denied life
partners of gay judges certain benefits which the spouses of heterosexual judges received. The
Court ruled this distinction discriminatory. On this, see R. Hirschl, o.c., pp. 122-125. In Re:
Certification of the Constitution of the Republic of South Africa 1996 (case CCT 23/96), para. 77,
the Court rightly described the relationship between negative and positive rights as follows: “It is
true that the inclusion of socio-economic rights may result in courts making orders which have
direct implications for budgetary matters. However, even when a court enforces civil and political
rights such as equality, freedom of speech and the right to a fair trial, the order it makes will often
have such implications. A court may require the provision of legal aid, or the extension of state
benefits to a class of people who formerly were not beneficiaries of such benefits.”
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More generally on this point, to Hirschl’s theory it is of course crucial that
judicial constitutional practice actually meets the expectations of the ruling elite.
Otherwise introducing judicial constitutional review makes no sense from the
elite’s point of view. Yet the jurisdictions we examined in this article show that
constitutional courts move independently to a large extent, and that it is far from
certain that their actions deliberately further the interests of elites. Moreover, if
political stakeholders do indeed act strategically, as Hirschl suggests, they must
realize fairly early on that as soon as they have been ousted, new political
stakeholders will take centre stage outside their predecessors’ control. They will
also understand that the new rulers, at least in Hirschl’s logic, will control entry to
the judiciary and that they will try to use this control to manipulate the staffing of
the courts. Those in power will do all this, again in Hirschl’s logic, with hopes
and expectations that these courts will ‘deliver the goods’ for them. But why
would this expectation hold true? When Eisenhower was asked if he had made
any mistakes as US president, he reportedly and famously replied: “[T]wo and
they’re both sitting on the Supreme Court.”89
Courts, in short, do not necessarily
do what they are expected to do from the perspective of political interests.
There are other snags in Hirschl’s analysis. His choice of case studies, for
instance, is revealing. The countries he examined are indeed all strongly internally
divided (and, interestingly, without exception have been under direct or indirect
British colonial domination): in Israel, there is deep animosity between various
Jewish population groups (secular and non-secular); Francophone and
Anglophone Canadians are not really on smooth terms; in South Africa, the white
minority and the rest of the population each harbored deep resentment; and in
New Zealand, tensions between the white population, the Maoris, and non-white
newcomers from the Pacific and Asia are growing. In the case of, for instance,
Israel, the main area of tension is that between the secular Jewish citizens of
European and American descent (the Ashkenazim, who are in control of the
political, cultural, and economic structures) and their fellow Jewish citizens from
North Africa, the Middle East, Ethiopia, and the former Soviet Union (who are
economically underprivileged and mainly, though not exclusively, orthodox in
religion). In New Zealand, the affluent and influential population of European
origin is locked in discord with the less prosperous population groups whose
numbers have grown dramatically in the final quarter of the twentieth century.
These cases can indeed be easily explained as examples of safeguarding,
through the introduction if judicial constitutional review, specific strategic
interests of elitist sections of the aforementioned societies. But does his
explanation hold good for developments in societies that Hirschl does not discuss,
such as Spain, where judicial constitutional review was fairly recently introduced?
89
Stephen J. Wermiel, “The Nomination of Justice Brennan: Eisenhower’s Mistake? A
Look at the Historical Record”, 11 Consitutional Commentary, 1994.
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What was the point of constitutional transformation there if not at least also the
facilitating and safeguarding of the democratization of its newly established
political system? A similar point concerns the foundation of the German
Bundesverfassungsgericht. The why and when of its establishment are sufficiently
well known, as is the relationship between this why and (especially the) when.90
Wasn’t getting behind the past not the main element here, much more than
safeguarding the interests of a (former) elite?
All in all, it would appear that Hirschl’s thesis cannot be fully supported
by evidence from Belgium and South Africa. His theory seems to be too much
based on inductive reasoning or on occasional proof, and as a result it can be
critiqued as less than universal.
6. AN ALTERNATIVE EXPLANATION
Consider this as an alternative: could legal change by means of introducing
judicial constitutional review not just as much be an organic response to a
structural failure of a society’s political institutions to establish societal peace?
Put differently, when essential societal issues cannot be resolved or addressed via
the regular political channels, for example because of structural political deadlock
in parliament, other bodies (e.g. courts) will be empowered to cut the knots.91
Extending the competences (powers) of these bodies is then the direct result of a
(still) weak or even systematically ineffectual political system. The more
vulnerable a political system is in this respect, the more probable it becomes that
decisive powers will disperse to bodies outside the regular political system. From
this point of view, the establishment of judicial constitutional review could also
be a function of an impaired political system; judicial constitutional review can
then act as a compensating or corrective mechanism for a political system that is
dysfunctional or otherwise in need of support.
In considering such an alternative, Arend Lijphart’s political theory could
well offer an explanation for the specific institutional configuration of a society’s
political system and the behavior of the actors shaping that society. Lijphart has
termed his model ‘consociational democracy’.92 93
It means “government by elite
90
On this, see, e.g., the recommendable book by U. Wesel, Der Gang nach Karlsruhe. Das
Bundesverfassungsgericht in der Geschichte der Bundesrepublik, Munich, Karl Blessing Verlag,
2004. See also on all this C. Closa, in 4 International Journal of Constitutional Law 2006, p. 582.
91
On this, see, e.g., C. Guarneri and P. Pederzoli, The Power of Judges. A Comparative
Study of Courts and Democracy, Oxford, Oxford University Press, 2002, pp. 161-180. Hirschl too
refers to this work (p. 33).
92
On this, see in particular his The Politics of Accommodation. Pluralism and Democracy
in the Netherlands, Berkeley, University of California Press, 1968; Democracy in Plural Societies:
A Comparative Exploration, New Haven, Yale University Press, 1977; and Democracies: Patterns
of Majoritarian & Consensus Government in Twenty-one Countries, New Haven, Yale University
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cartel to turn a democracy with a fragmented political culture into a stable
democracy.”94
Such a type of democracy is most often found in societies, as is
clear from the definition just cited, that are ideologically or otherwise strongly
divided. It was generally assumed that political stability was beyond reach for
such societies, but Lijphart has demonstrated that this nec plus ultra is not
unreachable for them; political instability is thus not a predestined terminus. The
potentially destabilizing effects of political division in a disunited society are on
the contrary likely to prompt the established powers (political actors and other
elites) to search for pragmatic ways to deal with societal cleavages other than
through the regular political structures. Alternative methods of political
accommodation and pacification are thus explored, and judicial constitutional
review might be one of them.
The Dutch and Belgian95
societies for the greater part of the twentieth
century play an important illustrative part in Lijphart’s views and theories.96
They
were both deeply ideologically divided between liberals and socialists, and
between Catholics and protestants on the one hand (in the Netherlands) and
Catholics and non-confessional groups of society on the other hand (in Belgium).
And in Belgium there where moreover the tensions between the different
language groups (French and Dutch speaking in particular). The rise of mass
democracy did however not lead to the establishment of judicial constitutional
democracy in the Netherlands; other means of accommodation were found
there.97
When in Belgium on the other hand judicial constitutional review was
Press, 1984. Not coincidentally, in 1985 Lijphart recommended politics of accommodation to find
a way out of the South African impasse of the day. See his Power-Sharing in South Africa,
Berkeley (Institute of International Studies), University of California, 1985. See also J. Klabbers,
in 16 European Journal of International Law 2005, p. 162.
93
The hallmarks of a consociational democracy are broad government coalitions, political
proportionality (in elections and representative bodies, but also in advisory bodies, the civil
service, etc.), mutual rights of veto in political decision making, and ‘pillarisation’. According to
Lijphart, Dutch society from the 1960s onwards was a classic example of both a pillarised society
and a consociational democracy. Pillarisation is a term that described the vertical organisation of a
society along traditional ideological, religious, and/or politico-economic divides. Pillarised
societies are divided in several smaller segments or pillars according to different religions or
ideologies. All of these pillars have their own social institutions (broadcast companies,
newspapers, schools and universities, sports clubs, mutual sickness funds, etc.).
94
A. Lijphart, “Consociational Democracy”, 21 World Politics 1969, p. 216.
95
Lijphart considered Belgium “the most thorough example of consociational democracy.”
A. Lijphart (ed.), Conflict and Coexistence in Belgium, Berkeley, Berkeley University Press, 1981,
p. 1.
96
Recently, Lijphart’s views were also used to help explain the process of legal change
concerning the issue of euthanasia in Belgium, in M. Adams, J. Griffiths and H. Weyers,
Euthanasia and Law in Europe, Oxford, Hart Publishing, 2008, Chs. 7 and 8 especially.
97
See further in this and the next paragraph on these other means. See also J. Klabbers on
this in 16 European Journal of International Law 2005, p. 162.
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indeed established it was mainly because of a fear that the country would
otherwise become ungovernable because of growing tensions between the
different language groups. Both these countries therefore do not seem to fully fit
the elitist explanatory model by Hirschl.
Even though today some of the characteristics of a consociational society98
no longer appear to be the most characteristic or dominant features of these
societies, Lijphart’s theory might still be relevant today. And this is so, because
his perspective is much more systemic than Hirschl’s. Lijphart’s theory offers a
functional-institutional view of how political actors in a democracy behave and
relate; political courses of action do not only follow from the power struggle as
perceived by the privileged classes (the elite), as Hirschl argues, but also from
considerations of political practicability. So understood, Lijphart’s theory does
not condense the drivers of constitutional change and accommodation to personal
motives to the same extent that Hirschl’s theory does. Lijphart focuses not so
much on elitist distrust of majoritarian rule as on keeping the political system
‘operational’.
In line with Lijphart’s reasoning it could well be argued that for example
the renowned late 20th-century Dutch ‘polder model’ (consultation model) is an
offshoot of a consociational democracy. The phrase ‘polder model’ has uncertain
origins, but is mostly used to describe the typically Dutch version of more or less
formalized consensus policy, developed in the 1980s and 90s in socio-economic
affairs.99
It is a short hand, referring to the typical Dutch ‘polders’100
, for an
institutionalized form of cooperation and consensus seeking between political
actors, social partners and other societal organizations.101
So following the
gradual dissolution of the old way of organizing Dutch society, the Dutch system
of political decision-making found new (mostly distinctly non-judicial) ways to
channel potential bottlenecks in the political decision-making processes, as will
also become more clear in the discussion below. The Dutch example can be seen
as a clear indication that functional or institutional approaches, like Lijphart’s, can
also help explain the way a political and legal system is organized and functions.
It is true that functional or institutional explanations such as Lijphart’s do
not very specifically provide for the actual moment or timing of the introduction
of judicial constitutional review. Even stronger, the Lijphart model itself does not
even provide specifically for the creation of judicial constitutional review as such.
98
See fn. 93.
99
J.J. Woldendorp, The Polder Model: From Disease to Miracle? Dutch Neo-Corporatism
1965 – 2000, Amsterdam, doctoral dissertation 2005, p. 28.
100
A ‘polder’ is a low-lying piece of land, which was originally flooded by water and was
later won as land. It is enclosed by embankments to prevent the land from flooding. It is a very
typical (though not exclusive) Dutch phenomenon.
101
The term was however quickly also adopted for a broader meaning, i.e. pragmatic
consensus decision-making in the face of diversity and plurality in general.
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It rather suggests reasons why there might be a need for its creation, and, more
generally, provides explanations for the institutional build up of a given society.
Hirschl, on the other hand, claims that his thesis has the advantage of being able
to better explain the timing of the introduction of judicial constitutional review,
which according to him makes it a better theory. He alleges that he can more
accurately explain why judicial review is introduced at a specific moment.102
That
moment occurs when the elite detect a politico-economic-cultural interest in
intervening in the normal political process (and before a competing group comes
into power). In this view, the cooperation of the elite is a conditio sine qua non for
the successful realization of legal transformation; at some point, the elites must be
ready to accept the conversion. And this point is reached before the masses, which
the elites resist and whom they fear, really seize power, as a result of which their
value system is clearly at risk.
But who would deny that in most cases the support of elites, political or
otherwise, is indispensable to achieving institutional change? However, Hirschl
necessitates the rational nature of the political elite such that they would only take
actions in pursuit of their own interests. Yet as we saw before, it turned out that at
least in Belgium and South Africa there is counterproof for the universality of this
claim. In the end, the fundamental weakness of Hirschl’s explanatory model is its
one-sidedness. It seems unable to accommodate explanations that do not rely
heavily on the supposedly calculated interests of political, economic and cultural
elites in a democratic society. What therefore is needed is a theory that is less
exclusive than Hirschl’s and can add to it. Lijphart’s theory might well offer this.
7. AND WHAT ABOUT THE NETHERLANDS?
As indicated in the introduction to this article, in recent years the debate in the
Netherlands on the introduction of judicial constitutional review has gathered
pace. Although the topic had been on the Dutch political agenda on several
occasions since 1848 already, it gained in significance when an opposition
member of parliament submitted a legislative bill to partially lift the ban on
constitutional review in Section 120 of the Constitution.103
Never before has a
proposal concerning this issue progressed as far as it has now. The purpose of the
proposal is not to repeal the ban on judicial constitutional review laid down in
Section 120 of the Dutch Constitution, but rather to add an exception to it,
empowering the judiciary to review acts of parliament against constitutional
provisions that protect most of the fundamental rights encapsulated in the Dutch
102
R. Hirschl, o.c., p. 36.
103
Parliamentary Proceedings II, 2001-2002, 28 331, no. 2. On the Dutch history regarding
judicial constitutional review, see C.A.J.M. Kortmann, Constitutioneel recht, 5th ed., Kluwer,
Deventer, 2005, pp. 374-381.
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constitution. The effect of the amendment would be that courts must refuse to
apply legislation that is inconsistent with these provisions.
The obvious question now is why judicial constitutional review has not
already taken root in the Netherlands. A partial answer to this question can be
attempted by combining elements from the preceding discussion.
In view of what has been set out above, the introduction of judicial
constitutional review in the Netherlands could be valid from an abstract point of
view, yet redundant from a concrete politico-institutional perspective. Dutch
institutions and society have long availed themselves of channels other than
parliament or judicial constitutional review to deal with social or political
conflicts and interests, including the protection of fundamental rights. Pivotal
organizations dealing with these topics include the Council of State, the Social
and Economic Council, the Auditor’s Office, the Scientific Council for
Government Policy, the High Council of the Judiciary and other public advisory
and decision-making bodies (‘poldering’ bodies).104
This fact tones down one of
the essential arguments put forward in the current proposal to introduce judicial
constitutional review, which is that the Netherlands would be the better for having
an extra link in the review chain leading to new legislation or regulation;
essentially the argument that an extra-legislative check is necessary to secure
proper checks and balances.105
More particularly it is argued that the dwindling
influence of parliament makes judicial constitutional review necessary in order to
safeguard or enforce the protective function of the law. But from a systemic
perspective there would not appear to be a dearth of checks and balances in the
Netherlands, despite the courts not being able to review the constitutionality of
legislation. Another reason put forward to advocate the introduction of judicial
review in the Netherlands is that it would be consistent and logical to do so: this is
because Section 94 of the Constitution recognizes, and even prescribes, the
judicial review of legislation against binding provisions of international law,
leaving some to argue that it would only be consistent to allow courts to examine
acts of parliament for compatibility with the country’s own Constitution as
well.106
However, this argument works both ways, as it can be used to support the
introduction of judicial review as well as to discourage it. After all, with judicial
constitutional review with respect to fundamental rights as encapsulated in
international law in place, why opt to increase the competence of the courts?
104
See on all this C.A.J.M. Kortmann, o.c., pp. 286-292, pp. 541-544. The Council of State
for example among other things advices on the legislative quality (including the constitutionality)
of pending bills.
105
Parliamentary Proceedings II, 2001-2002, 28 331, no.3, pp.13-15.
106
See G. van der Schyff, “Rethinking the justification for the constitutional review of
legislation in the Netherlands. A critique of the ‘treaty argument’ and thoughts on the way
forward”, in R.A.J. van Gestel & J. van Schooten (eds.), Europa en de toekomst van de nationale
wetgever, Nijmegen, Wolf Legal Publishers, 2008, p. 129.
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So the question is what, from a systemic perspective, problem the
introduction of judicial constitutional review in the Netherlands resolves. Even
though the arguments supporting the proposal might be considered laudable from
an abstract point of view, the relevance and added value of judicial constitutional
review in political practice and to the quality of legal protection (guarantees for
citizens) are not beyond dispute. Introducing judicial constitutional review would
thus add yet another layer to the already complex Dutch system of checks and
balances.
If introducing judicial constitutional review would nevertheless succeed in
the Netherlands (which we do not expect, to be sure), it is not inconceivable that
an overburdened system of checks and balances could develop rejection
symptoms, particularly regarding the Senate. It could easily be this ‘upper’ House
of Dutch parliament, with its core duty of verifying the quality of legislation
(including the protective function of legislation), to be the first to fall
overboard.107
After all, the Senate’s right to exist is already frequently being
challenged as it is.108
But surely, one might argue, constitutional review by the Senate or other
institutions on the one hand and the judiciary on the other do differ
fundamentally. The former is pre-emptive and the deliberations about
constitutional compatibility are open to public scrutiny (through political and
parliamentary debate), whereas the latter is retrospective and less public
(discernible only in the grounds of a judicial decision). Why treat them as
interchangeable? From a systemic perspective, however, such distinctions are not
particularly germane, because what is relevant here is whether the political system
as a whole (macro perspective) is perceived to demonstrate compositional balance
and is able to addresses societal issues. As to this, the Netherlands seems
relatively well balanced with the legislature being checked by a variety of bodies
such as for example the Council of State.
8. CONCLUSION
How must the establishment of judicial constitutional review in a given
jurisdiction be perceived? What reasons did the principal actors in Belgium and
South Africa have for introducing judicial constitutional review? To answer these
questions, events must first be unfolded and subsequently appraised. In this
article, we have attempted just that. The final assessment rests on an interpretation
107
Explaining this particular chamber’s function, see C.A.J.M. Kortmann, o.c., pp. 237-239.
108
Whether or not this criticism is justified is not the issue here. Suffice it to say here that
dissenting voices are not few and far between. See also H. Broeksteeg and E. Knippenberg, “The
role of the Senate in the legislative process”, Maastricht Journal of European and Comparative
Law 2006, p. 219.
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of the context and motives relating to the establishment (and development) of
judicial constitutional review in Belgium and South Africa, and the possible
introduction of it in the Netherlands. In this article we tried to show that the
introduction of judicial constitutional review might just as well be the result of a
particular or concrete systemic need of a tangible political system, in the fashion
of Lijphart, and cannot simply be ascribed exclusively to the covert strategies of a
particular societal class that wants to protect its value system, as Hirsch argues.
Applied to the Netherlands that particular systemic need for the introduction of
judicial constitutional review seems not pertinent, which could probably explain
its absence to date.
On a parting note, we wish to make it clear, perhaps superfluously, that in
this article we have not meant to make an abstract or principled case either for or
against judicial constitutional review. We have only been trying to develop a
descriptive explanation for why and when judicial constitutional review will as a
matter of fact emerge. To be able to do so, we drew on political theories by
Hirschl and Lijphart. And although Lijphart himself argues that a consociational
democracy is superior in quality to a regular majoritarian (parliamentary)
democracy – thus upgrading his descriptive and explanatory theory with a
prescriptive-normative component – we did not set out to make such qualitative
statements. Nor did our research lend itself to such a purpose.
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