|
FREE MARKET FOUNDATION
SUPPLEMENTARY
ARGUMENT
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE
NO: CCT 23/96
In re: THE APPLICATION BY THE CONSTITUTIONAL ASSEMBLY TO CERTIFY A NEW
CONSTITUTIONAL TEXT IN TERMS OF SECTION 71 OF THE CONSTITUTION
OF SOUTH
AFRICA
NOTICE BY THE FREE MARKET FOUNDATION OF SOUTHERN AFRICA IN
TERMS Of
RULE 15(3) AND DIRECTION 4 OF THE DIRECTIONS ISSUED BY THE
PRESIDENT
OF THE CONSTITUTIONAL COURT ON 13 MAY 1996 AS AMENDED
BY THE
PRESIDENT'S NOTICE OF MAY 1996
HEREWITH SUPPLEMENT TO OUR
OBJECTION
TAKE FURTHER NOTICE that the FREE MARKET FOUNDATION OF
SOUTHERN AFRICIA appoints its national head office on the second floor of Export
House at 71 Maud Street, SANDTON, at which it will accept notice aiid service of
all documents in these proceedings.
FREE MARKET FOUNDATION OF SOUTHERN
AFRICA
2nd floor Export House 71 Maud Street
SANDTON
Gauteng
TO: The REGISTRAR
Constitutional Court of South
AFrica
Contents:
1. Bill of rights: Vertical and horizontal
rights
2. Why horizontal rights are wrong
3. Bill of rights: Limitation
clause
4. The bill of rights
5. Property rights
6. Reserve Bank
Independence
BILL OF RIGHTS: VERTICAL AND HORIZONTAL
RIGHTS
This memorandum argues that rights conferred by the Bill of
Rights in the Constitution should be vertical only, that is to say, rights
of
private persons against the state. The Constitution is not the appropriate
place to regulate the rights of private persons among
themselves (horizontal
rights), and to attempt to do so in this way would have a number of highly
undesirable ettects.
The memorandum is in two parts. The first part sets
out the arguments of principle and the second part sets out concrete
illustrations
of the points which are made.
PART I
- Of
the numerous constitutions in the world which contain bills of fights (there
must be at least fifty), know of not a single one
in which horizontal rights are
expressly conferred. There have been one or two cases where courts have very
tentatively attempted
to make horizontal applications but these are novel,
tentative controversial. The significance of this fact is
threefold:
- If
some fifty countries have decided not to do something there is probably a good
reason for this decision.
- The
real effect of conferring horizontal rights in a constitution has not been
tested anywhere. The danger, therefore, of undesirable,
unintended consequences
is extremely high, and there is no guidance from international experience as to
how to handles these consequences.
- A
very important point: since those who propose horizontal fights are proposing an
untried and unprecedented innovation, the onus
surely is on them to show that
this innovation is practical and desirable rather than on those who oppose it to
show that it is undesirable.
- The
conferring of horizontal rights in a constitution is not in accordance with the
nature and purpose constitution. The constitution
is the agreement in terms of
which the state is constituted. It confers power on the state and sets the
limits of that power. These
limits have to be entrenched because there is a
particular temptation to those who at any time control the power of the state to
extend that power, especially with purpose of perpetuating their constrol. The
rights of individuals among themselves are defined
bythe common ans statute law.
There is no similar reason why this law should be entrenched.
- The
relationshp of individuals among themselves and the relationship of individuals
to the state are so different that it is highly
inappropriate to attempt to deal
with them by the same measures. This is for two reasons:
- The
state has no rights; it has only functions, so there is no conflict between the
rights of individuals over against the state
and the rights of the state. The
rights of individuals, however, are in conflict with each other and any increase
in the rights
of individuals must also, and at the same time, be a reduction in
their rights since every individual has to accommodate the increased
fights of
other individuals. The constant need to adjust the resulting conflicts is a
very good reason why ordinary law among individuals
should not be
entrenched.
- The
need for a bill of rights over against the state derives from the fact that
historically in South Africa and, indeed, in most
states in the world, the state
had absolute unlimited power. There was nothing in South African law as it
existed prior to the present
intenim Cotistitution to prevent the repetition of
the crimes of Stalin, Hitler or Pol Pot. If the South African Parliament had
passed a law that all Jews should be put to death, that would have been the law.
Even under the existing Constitution (and under
most constitutions) the state
has absolute and unlimited power over all persons resident under its
jurisdiction except to the extent
that this power is limited by the
Constitution.
The relationship of private persons among themselves could not be more
different. The whole system of common law and much statute
law regulates their
mutual relations and there are in fact almost no situations where one person has
power over another where that
power has not been conferred voluntarily by
agreement, either by contract or by voluntarily entering into a place where the
other
person is in control (eg a restaurant where there is a no smoking rule).
This means that any attempt to "enlarge" the rights of
rights of people over
against each other will necessarily diminish the right of freedom of contract.
For example, does the right
of freedom of speech (interpreted horizontally) make
it impossible to sign a confidentiality agreement?
It is by now perfectly well established that to deprive people of the right
to contract is not to increase their rights but to impose
disabilities on them.
Disabilities of this kind which were in the past imposed on women in the common
law (and which have since
been abolished) were correctly seen not as an increase
but as a derogation of their rights.
The one exception to the principle that nobody has power over another which
has not been conferred by voluntary agreement is the
power or parents over
children. This, however, is already elaborately (and, I would suggest, amply)
circumscribed by existing law.
The existence of child abuse is not a result of
inadequate law, but of the extreme difficulty of policing the existing laws in
this
area.
- Not
surprisingly in view of what has been said above, many rights which are
traditional in a bill of rights, having been formulated
to be vertical only,
will, if applied horizontally, give rise to gross absurdities or irresoluble
conflicts. It is not argued that
the courts will in fact make decisions which
are absurd. The courts will no doubt find a reasonable way of interpreting the
horizontal
bill or fights.
This, however, gives rise to the next major objection. The courts will be
forced to interpret the bill of rights in ways which will
appear to the man in
the street to amount to sophistry, or to the court merely inventing the law.
Thus highly controversial issues
of social policy (eg abortion) YAII be seen to
have been determined not by the elected representatives of the people but by an
unelected
and irremovable constitutional court. This is extremely undesirable.
The prestige of the courts and the justification of their
non-elected and
irremovable status is based on the perception that the courts are engaged in
bona fide interpreting and applying
a law wffich has a separate existence and a
legitimate origin. As soon as this ceased to be so the courts become a target
for attack
while one of the fundamental functions of democracy, to ameliorate
social conflict by giving the losers in any policy debate the
prospect of
reversing the decision through the polls, is lost.
- The
fact that the Bill of Rights applied horizontally will not be able to be applied
literally has a further extremely undesirable
consequence. This is perhaps the
worst of all. It will not be possible for anybody to foresee with any
confidence what decisions
the courts will come to. The whole structure of
common and statute law on which daily life - both commercial and personal - is
based
will be thrown into doubt and until the courts have rules on any
particular matter, there will in effect be no law. The resulting
uncertainty is
likely to inhibit all kinds of transactions, causing serious economic damage.
It will increase litigation, which
is costly, and, perhaps most seriously, it
will give rise to a huge number of decisions which will be unjust. The object
of a system
private law is that private actors, knowing what the law is, should
be able to arrange their transactions in way that their honest
expectations will
be fulfilled. In the absence of law this cannot be done and disputes will
constantly arise between people, both
of whom acted in complete good faith, so
that no fair resolution is possible.
It is true that certainty in the law in the sense that the outcome of any
case where the facts are known can be foreseen with certainty,
is not attainable
in the real world, but this does not mean that the legal system should not
strive to approximate to such certainty
in every way that is practically
possible.
PART II
The points raised here are purely by way of
illustration. The arguments raised in relation to a few rights (or others very
similar
to them) can easily be developed in regard to practically every clause
in the Bill of Rights. To avoid undue length I am confining
myself to a small
lnumber.
I shall address first some of the inost uncontroversial of the
first generation rights.
[Editor’s Note: Page
missing]
otherwise they would keep secret, and, therefore, to make
possible form of co-operation which othewise would not take place. To prevent
confidentiality agreements will not make more information available, but
less.
As regards the other issues, it will no doubt be argued that the
Court, will arrive at a reasonable answer. Maybe you will be allowed
to have a
"no talking" rule in the library; you will be allowed to prevent a politicil
rally from being held in the circulation area
of a shopping mall (thereby
seriously interfering with its proper use); but you will not be allowed to
prevent somebody ftom handing
out pamphlets in a shopping mall. But perhaps you
will be allowed to prevent pamphlets being handed out in a restaurant and you
will almost certainly be allowed to prevent them being handed out in a school
classroom.
All this might or might not be reasonable but, until a great
deal of case law has been developed, society will be plagued with a tremendous
number of try-ons leading to conflict and possibly violence, and the rights of
ordinary people to go about their lives without invasion
will be seriously
diminished.
Another area of grave uncertainty would be whether a shop
could be compelled to carry particular literature. There have in the past
been
many booksellers with a distinct and quite unconcealed political bias. This
would seem to me to be reasonable; people know
where to go if they are looking
for a particular kind of literature. If there is a demand for other kinds of
literature, other people
will certainly supply it.
The value of this
arrangement, which is only possible in the absence of categorical rights in this
matter (other than the categorical
right of the shopkeeper to decide what he
will carry) is well illustrated by the recent controversy in South Afiica about
printed
pornography. This is an area in which there is the most violent
disagreement and, indeed, disagreement which cotild lead to violence.
Without
any government intervention the matter has been adjusted in what would seem to
be a satisfactory manner. Some shops do
not carry pomography, and advertise
that they do not. This meets a distinct demand. Other shops do carry
pornography, and advertise
the fact so that the material is available to those
who want it. Pomography is available in the streets, but it is displayed in
plain covers so that those who do not want it are not offended.
This
would appear to have gone a long way to defuse what was otherwise a potentially
explosive conflict. One could visualise that
laws forcing shops to carry
pornography could lead to violence, boycotts or even the bombing of
shops.
It is very important to realise that in discussing these matters
one is not trading-off the rights of the general public against the
rights of
property owners. It is the property owner who has every incentive to meet the
wishes of the general public. If the handing
out of political pamphlets in
shopping malls is popular so that it will attract people into the mall, both the
owner and the tenant
shopkeepers will want it to happen. If it is unpopular
there will be an incentive to forbid it. Those who wish to prevent such
forbidding are seeking to give individuals (possibly a very sniall number) the
fight to invade the privacy of a large number of individuals.
Finally
there is the question whether the "freedom of the press and other media" applies
horizontally and means that any person can
require any publication or
broadcasting network to carry his material. Obviously this is not possible.
The amount of material which
could be imposed on the media might (and probably
would) hugely exceed what could be published, so this cannot be taken literally.
How far is it to be taken? Is it to end that not the editor of a newspaper but
the Constitutional Court is to decide what appears
in any particular newspaper?
This, again is not feasible.
The last point to be made here: supposing
all these examples of what these rights might mean are considered too
far-fetched and unreasonable?
Then what do they mean? Is it open to the courts
to decide that where the Constitution explicitly says that the right exists and
that right is horizontal; that it nevertheless has no meaning whatever? I fear
that a court would feel bound to give the right some
content, even if the judges
themselves did not think that this was desirable.
If these problems arise
with first generation rights, what are we to say about second generation
rights?
(iv) Housing and Land
"Everyone has the
fight to have access to adequate housing". What does this mean horizontally?
Presumably we can be confident that
it does not mean that anybody who does not
have a house can take away the house of somebody who does have one. Does it
mean that
everyone who does not have a house can sue everyone in sight for the
cost of giving him one? I cannot suggest any reasonable or
plausible horizontal
application of this right, so the worry raised at the end of the last section
applies here very strongly.
Why Horizontal Rights are
Wrong
A critique on theoretical and pragmatic grounds of the proposed
horizontal application of the new
Constitution's vertical
rights.
1. HORIZONTAL RIGHTS IN THEORY
1.1 The essential nature of a Constitution. The idea of horizontal
application of the Bill of Rights confuses and obfuscates the essential nature
and purpose of a Constitution.
A Constitution does what the word implies: it
constitutes. It constitutes the state and its government. In doing so, it
prescribes
and proscribes their powers and obligations, and the institutions and
procedures of governance.
In none of these does it nor ought it to pretend to be comprehensive. There
must, for instance, be a parliament, senate, provincial
legislature, supreme
court, etc - only that which the govemmenl is absolutely obliged to have. There
may be control boards, a national
airline, a distiict court or a municipal bus
service. These are not obligatory.
Similarly, the Constitution protects - or should protect - truly fundamental
rights. These are concemed with what the government
may absolutely not do.
Beyond these, there are other rights it is also expected to respect such as the
right to information, or
the rights to hire school halls for political
meetings, but it is not obliged to do so.
Furthermore, it is expected to act assertively in many respects, such as
environmental protection, education, basic welfare et al,
but cannot be obliged
to do so - the arguments for 'second generation' rights notvathstanding -
because, unlike 'first generation'
rights, such action is necessarily resource
and policy dependant.
As far as horizontality is concerned, this is essentially why there is a
govemment at all: to regulate relationships between subjects.
How it will do so
is what it has to go to the polls to establish by way of electoral mandate. But
what it may not do even with
a mandate is that which experience has taught has
to be rendered non-votable on account of how absolutely fundamental it is. Only
these tnily flindamental fights, and no more, must be provided for. There
should be nothing else in the Constitution. To dilute
and pollute it vath all
sorts of ideas that are currently trendy is short-sigheil and regressive. It
reverses rather than advances
the evolution of constitutionalism.
1.3 The unique and awesome nature of the State. The reason why a Bill
of Rights is necessary is because of the completely distinctive and unique
nature of a govemrnent. To bring
horizontality into the Constitution reflects a
profound misunderstanding of this point. The government of the day is there to
regulate
relationships amongst subjects - which is why they are called
"subjects".
The Bill of Rights and the Constitution is there - and necessary - to
curtail the manifestly awesome power and danger of the sole
entity in society
with the right and ability to initiate and threaten coercion. Only the state
can imprison and fine people. Only
it can make laws. It alone has the threaten
coercion. Only the state can impdson and fine people. Only it can make laws.
It alone
has the ability to tax, forbid employment of one by another, prescribe
and proscribe forms of entrepreneur ship, dictate the terms
of private
contracts, dictate the place, content and method of schooling by compulsion, and
so on ad infinitum.
The distinction between the government and all other entities cannot be
over-emphasised. Virtually everything a goveniment does
would be a serious
crime if done by any other entity. Government is not only legalised force, it
is legalised crime. Were private
people to do much of what governments do they
would be deemed not only criminal but insane. A private citizen walking into a
shop
and requiring customers to leave and the shop to be closed at the point of
gun would be certifiable, but the same act be a Shop Hours
Inspector would be
regarded as both normal and acting "in the public interest".
To consider horizontality and verticality in the same context is to
trivialise the Constitution and the rights of citizens.
[Editor’s Note: Page missing}
The onus for proving (beyond reasonable doubt - the standard of proof
required for Constitutionalising something) that there will
be no
counter-productive, unintended, or unforeseen consequences rests squarely on the
shoulders of those who advocate horizontality
especially since it is a novel
idea that does not exist explicitly in any other Constitution.
It is true that the courts in a few countries have started interpreting
their constitutions horizontally. Such cases are new, they
are rare, and
controversial. On all these counts Constitutionalised horizontality is clearly
unwarranted.
Not only should we not be called on to illustrate the impropriety of
horizontality, but its protagonists have done nothing to show
that there are
unlikely to be counter-productive effects. They have legitidsed their case
neither theoretically nor empirically.
We cannot possibly anticipate what will go wrong in the real world in this
document. The dangers mentioned here might never materialise.
What is more
probable is that things we have not anticipated will go horribly wrong. For
this reason alone the govermnent should
legislate rather the constitutionals
horizontality (if is serious about the idea).
1.8 Dilution of vertical rights. A crucial point is that the courts
are bound to find horizontality enforceable only when it is feasible. This
would have the effect
of verticality being diluted and undermined to the same
extent.
If there is to be horizontality in the Constitution at all, it should, as
with second generation rights, be separated clearly from
verticality (in a
preamble, appendix or dedicated Chapter).
1.9 Horizontality is ideologically biased. Since horizontality is
ideologically biased, the Constitution permanently be under a sword of Damocles.
A new party, or the same
party new ideas/leadership, at a later staae will have
to amend the Constitution to implement its policies. Horizontality therefore
degrades the Constitution to merely another piece of legislation, to be amended
at the behest of current leaders and their constituents.
(Conversely, an
enduring Constitution - a Constitution for the long term - prescribes the rules
according to which parties from the
left to the right that share only a
commitment to democracy, can get to power and govern according to their
programme.
A Constitution with only horizontality is not one that all democrats of all
persuasions can agree on. It is not elevated above party
politics, transient
ideology, and shifting policy trends. A good Constitution is one that can
survive any predictable and legitimate
change of government or a change of mind
by the incumbent government in the light of experience.
[EDITOR’S NOTE: VARIOUS PAGES MISSING]
|
