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The Architecture of Justice and the Justice of Architecture

The past two weeks saw the passing away of two great architects, former Chief Justice Arthur Chaskalson and the Brazilian architect Oscar Niemeyer.

One was an architect of the law, the other an architect of concrete.

Both were united in an understanding that, ultimately, their architecture will stand or fall by its ability to make the world a better place.

Niemeyer is best remembered as a co-designer of the United Nations Headquarters in New York and for the many iconic buildings he designed in Brasilia, the capital of Brazil.

A life long member of the Brazilian Communist Party, Niemeyer said of his architecture, “I created it with courage and idealism, but also with an awareness of the fact that what is important is life, friends and attempting to make this unjust world a better place in which to live."

Chaskalson will forever be remembered a courageous lawyer, constitutional architect and first President of the Constitutional Court and Chief Justice. He has left a legacy of iconic creations of another kind, the judgments he delivered as Chief Justice based the constitutional foundation of which was such an important architect.

Some have suggested that our democratic edifice and the constitutional foundation upon which it rests are under threat of being dismantled, if not demolished. I beg to differ.

Whilst I agree with the proposition that the price of freedom is eternal vigilance, I do not believe that its corollary is hysteria. Rather, it is sober analysis and careful reflection - the kind manifest in Arthur Chaskalson’s judgments.

The past three weeks have witnessed the addition of three substantial building blocks that further buttress the institutions provided for in our constitutional architecture.

The first building block is cast in the form of the Constitution Seventeenth Amendment Bill passed by the National Assembly on 20 November.

It is significant that the first constitutional amendment to be put to the vote in many years in a Parliament where the ANC has close to a two-thirds majority is one that strengthens the Constitutional Court by making it the highest, or apex, court in all matters constitutional and “non-constitutional”, so-called.

The amendment was supported by all parties except the IFP and Cope – for reasons that remain unfathomable and, to use legal parlance, “uniquely within the ambit of their personal knowledge.”

The amendment underscores the perspective captured by former Chief Justice Chaskalson in Pharmaceutical Manufacturers Association of SA and Another: In re Ex parte President of the RSA and Others that, “There are not two systems of law, each dealing with the same subject-matter, each having similar requirements, each operating in its own field with its own highest Court. There is only one system of law. It is shaped by the Constitution which is the supreme law, and all law, including the common law, derives its force from the Constitution and is subject to constitutional control.”

The amendments also introduce a new judicial governance framework.

Under the leadership of President Zuma a number of important institutional arrangements have been put in place that enable the judiciary to exercise greater control day-to-day administrative matters that affect it most directly, in the same way that the legislature and the executive do.

The establishment of the Office of the Chief Justice as a national department, separate from the Department of Justice & Constitutional Development represents an important transitional step to a more fully-fledged court administration model.

These changes were widely, albeit softly, welcomed.

The new judicial governance framework with the Chief Justice at the head both reinforces the separation of powers and enhances the independence of the judiciary as well promotes judicial accountability as the Chief Justice will be able to ensure the development and monitoring of norms and standards for the effective functioning of all courts.

Second block was cast in the mold of the Superior Courts Bill, passed on 22 November, which starts implementing constitutionally mandated rationalization of our superior courts, laying the basis for a single judiciary and paving the way for greater involvement of the judiciary in court administration.

The third building block takes the form of the release, for public comment, of proposed legislation to address the remuneration of office bearers in constitutional institutions such as the Public Protector, the South African Human Rights Commission, the Commission on Gender Equality, the Electoral Commission, the Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities and the Auditor-General.

Regrettably, this important development been completely ignored in what passes for public discourse on these matters.

The Constitution provides that national legislation must establish frameworks for determining the salaries, allowances and benefits of judges, the Public Protector, the Auditor-General, and members of any commission provided for in the Constitution.

The Determination of Remuneration of Members of Constitutional Institutions Bill seeks to do exactly that.

At present the remuneration and conditions of service of members of state institutions supporting constitutional democracy is, quite frankly, a mess.

Different statutes provide for very different procedures to be followed and mechanisms to be used in determining remuneration and conditions of service for these institutions, leading to wide, and inexplicable, discrepancies.

The bill proposes a uniform procedure, that the President determines the remuneration and benefits of the office bearers in Constitutional Institutions after taking into consideration the recommendations of the Independent Commission for the Remuneration of Public Office-bearers.

The President’s determination will have to be submitted to parliament for approval before a public notice is issued.

This is meant to ensure that that these crucial Institutions are indeed independent and can fulfill their important constitutional mandates impartially and effectively.

Because section 181(5) of the Constitution states that the Chapter 9 Institutions are accountable to the National Assembly, it is appropriate that, in terms of the procedure set out in the Bill, Parliament has the final say in approving the President’s determination, thereby enhancing transparency and accountability.

This might all sound very technical but these measures go a long way to safeguard the independence of key constitutional institutions.

I conclude by returning to the assertion that there is a wrecking crew that has usurped command of a swing-ball crane and is hell bent on demolishing all that has been build on the foundations of our Constitution as a prelude to an assault on the foundations themselves.

Yes, some will misread or misinterpret our constitutional design blueprints from time to time. Yes, certain building contractors will try to use substandard material. Yes, some will operate the cranes somewhat recklessly.

However, the fundamental design is correct, the foundation is secure and the building that is being constructed is becoming taller and stronger every day and, most importantly, is providing shelter and changing the lives of especially the poorest and most vulnerable for the better, albeit painfully slowly.

So what about Oscar Niemeyer and the justice of architecture?

An obituary of Niemeyer prepared by Reuters argues that, “Despite his egalitarian views, Niemeyer had no illusions that his buildings were helping to improve social justice. Far from the model [he] had envisioned, Brasilia today is in many ways the epitome of inequality. Planned for 500,000 people, the city is now home to more than 2.5 million and VIPs keep to themselves in fenced-in villas while the poor live in distant satellite towns.”

Indeed, Niemeyer remarked caustically in an interview with Reuters in 2001:

“It seemed like a new era was coming, but Brazil is the same crap – a country of the very poor and the very rich.”

Chaskalson, the architect of the law, makes a similar point less graphically though arguably more clearly in Soobramoney v Minister of Health, KwaZulu-Natal:

“We live in a society in which there are great disparities in wealth. Millions of people are living in deplorable conditions and in great poverty. There is a high level of unemployment, inadequate social security, and many do not have access to clean water or to adequate health services. These conditions already existed when the Constitution was adopted and a commitment to address them, and to transform our society into one in which there will be human dignity, freedom and equality, lies at the heart of our new constitutional order. For as long as these conditions continue to exist that aspiration will have a hollow ring.”

I think this poses the real threat to our Constitution and requires of all of us to unite in implementing programmes such as the National Development Plan.

By Andries Nel, Deputy Minister of Justice and Constitutional Development.