Playing by the rules: The balancing act of Judge Dennis Davis
- Pierre de Vos
- 27 Nov 2012 01:58 (South Africa)
After the judgment was delivered, but before the text of the judgment became available, some commentators criticised Judge Davis for supposedly being an ambitious and unprincipled ANC lackey, while others lauded the judgment, ostensibly because it established the principle that the courts cannot order Parliament to adhere to the Constitution. It is surprising, to say the least, that such comments were made by people who could not possibly have read the judgment. So, dear readers, ignore these pontificators. Their comments are nothing more than nonsense upon stilts.
The opposition parties asked the court to order the Speaker of the National Assembly to take whatever steps were necessary to ensure that the motion of no confidence be debated on or before 22 November 2012. The court found that the Rules of the National Assembly did not empower the Speaker to do so and that a court could therefore not order the Speaker to do something the Rules of the Assembly did not entitle him to do. However, it did not find that a court could never instruct the Speaker (or any other member of the National Assembly) to comply with the Constitution.
Davis found that the Constitution bestowed a right on all parties (not only the majority party) to bring a vote of no confidence against the president. This, said the court, “is the very stuff of deliberative democracy”. Quoting from the recent Constitutional Court judgment of Chief Justice Mogoeng in the Ambrosini case, Judge Davis noted that the very nature and composition of the National Assembly renders it pre-eminently suited to fulfil the role of a national forum for debate on whether the president is suitable to continue leading the government.
“In 1994, South Africa boldly began its journey from a society based on authority to one predicated upon justification, from diktat to deliberation, arbitrary assertion to rational consideration. While this journey was never expected to be easy, given our fraught and divided past, the ambition of the Constitution was to exercise guidance to the nation, so that it be kept on the indicated path, when intolerance or the temptation to abuse power to suppress the dignity of even a single voice expressing a different perspective, prompted movement from the constitutionally indicated journey.”
The right of an elected representative to bring a motion of no confidence in the president is contained in section 102 of the Constitution. This right belongs just as much to a member of an opposition party as it does to a member of the majority party. A transient majority cannot block or delay the discussion of such a motion of no confidence – something the transient majority of ANC members unconstitutionally sought to do in this case.
Currently, the Rules of the National Assembly do not allow for the tabling of a motion of no confidence, except on the basis of consensus of all the parties represented in the Programming Committee of the Assembly. This position is incompatible with the Constitution because it allows either the majority or a minority to subvert the right of anyone in Parliament to have a debate on a vote of no confidence in the president as envisaged by section 102 of the Constitution.
The Chief Whip of the ANC first described the motion of no confidence in President Zuma as frivolous and vowed that the ANC majority in the National Assembly would prevent it from being debated. He then made a complete U-turn (although he pretended not to have done so in the hope that we would all turn out to be morons), stating that the motion was very serious and agreeing that the majority party “[would] impress” upon Parliament that the debate be scheduled in the week of 22 February 2013.
However, as Davis found, even this altered position of the ANC Chief Whip “proceeds from an incorrect premise” as it “cannot be within the gift of the majority party to decide upon the issue of the timing of this kind of motion.” This means that the decision of the ANC that it would only allow a debate of the motion of no confidence next year was itself not compatible with the Constitution as it was not for the ANC to decide – based on its so called “generosity” – when such a motion should be debated. Despite the embarrassing bluster of the ANC Chief Whip, the debate is urgent and needs to be scheduled as a matter of priority by the National Assembly.
There is an important reason why the timing of a debate of such a motion of no confidence in the president cannot be left to whims of the majority party (or any other party for that matter). A motion of no confidence in the president of the Republic of South Africa must be inherently urgent as it “raises matters of profound national interest and importance”.
“Members of the majority party may well consider that all of these claims are unjustified, indeed outrageous or frivolous. But when political parties, who represent approximately a third of the electorate, decide to initiate a motion, and to seek wider support for the motion on matters of such importance, that too is their right. The public are entitled to hear the debate. The public, in effect, own the national forum, Parliament. It is the body of the citizens of South Africa in that it is comprised of the people’s representatives, and the people are entitled, as citizens of South Africa, to hear what our national representatives have to say about a matter of such pressing importance. Of course, once the debate takes place and reasoned voices across the floor are heard, the majority may well vote the matter down and that would be the end of it.”
Although judge Davis does not spell this out, the consequences of his judgment is that the ANC acted unconstitutionally, first, when it decided to block the debate and then, secondly, when it decided to postpone the debate until February next year. The ANC decision robbed voters of the opportunity to listen to and consider the views expressed during a debate on the vote of no confidence in the President, treating ordinary citizens with contempt.
Despite this, the court could not order the Speaker to schedule the debate as requested by the opposition. The problem faced by the court in this case was that the Rules of the National Assembly do not currently provide for the necessary deadlock breaking mechanism to ensure that a vote of no confidence is debated urgently – even where the majority party wishes to block the debate or where it wishes to delay the debate to a future date more to its liking. The High Court simply did not have the power to rewrite the Rules of Parliament as the power to determine what processes ought to be followed falls within the constitutional domain of the National Assembly.
“Courts exist to police the Constitutional boundaries… Where the Constitutional boundaries are breached or transgressed, courts have a clear and express role. And must then act without fear or favour. There is a danger in South Africa however of the politicisation of the judiciary, drawing the judiciary into every and all political disputes, as if there is no other forum to deal with a political impasse relating to policy, or disputes which clearly carry polycentric consequences beyond the scope of adjudication. In the context of this dispute, judges cannot be expected to dictate to Parliament when and how they should arrange its precise order of business. What courts can do, however, is to say to Parliament: you must operate within a constitutionally compatible framework; you must give content to section 102 of the Constitution; you cannot subvert this expressly formulated idea of a motion of no confidence. However, how you allow that right to be vindicated is for you to do, not for the courts to so determine.”
Importantly, the judgment found that there was no authority that suggested that the Speaker had some residual power – not provided for in the Constitution – to instruct that a vote of no confidence be debated urgently. The judgment therefore confirms the limits of the power of the Speaker. Where the rules are clear, the Speaker cannot act outside these rules. Neither can the court order the Speaker to do so. Whether the Speaker is asked to censure a member of Parliament for implying that the president is corrupt or whether to order the Programming Committee to schedule a debate, the Speaker is bound by the clear rules of the Assembly. No court can give the Speaker powers not bestowed on him by these clear Rules of the Assembly. But the clear rules themselves can be found to be wanting, in which case – as we shall see – the Constitutional Court can order the National Assembly to fix the rules.
It is important to note that the court found that debating such a vote was “inherently urgent” and that opposition parties therefore have a Constitutional right to have such a motion debated urgently. The court pointed out that a vote of no confidence was “[p]erhaps the most crucial” motion that could be considered by Parliament. It is an essential tenet of the Westminster system that the government possess the confidence of the National Assembly. In other Westminster democracies, there is a rule that any motion of a vote of no confidence in the government takes precedence over all other business until disposed of. That is why the Rules of the Assembly should provide for the urgent scheduling of such a vote, regardless of the whims of any political party represented in Parliament. Time should have been found to ensure it takes place expeditiously.
The problem here was that the Rules of the Assembly do not currently provide for this. What was required was for the Assembly to craft a special rule to provide for the tabling of a vote of no confidence as a matter of urgency. It is not desirable that courts make the determination as to when this occurs. But the appropriate court with the requisite jurisdiction can order Parliament to amend its rules to provide for it. The High Court was not such a court.
This is because the High Court was bound by section 167(4)(e) of the Constitution, which provides that only the Constitutional Court can decide whether Parliament has failed to fulfil a Constitutional obligation. As Parliament may well have failed in this case to fulfil its Constitutional obligation because it omitted to provide a Rule which would provide for the urgent tabling of a debate on a vote of no confidence in the Presidency, the Constitutional Court might well be the only appropriate forum to provide a remedy that would truly vindicate the rights of the opposition parties who tabled the motion.
This is why it would be entirely appropriate for the opposition parties to approach the Constitutional Court to order Parliament (not the Speaker) urgently to schedule a debate on a vote of no confidence in the President and to order it to amend its rules so that the majority party would not in future be able to block or delay the debate of such a motion. I trust that they will indeed approach the Constitutional Court to do so, as the decision of the ANC to “allow” the scheduling of the debate for February next year signals that it does not yet understand that it is not within the party’s Constitutional power to decide when to schedule such an urgent debate. DM