JUDICIAL CONSTITUTIONAL REVIEW IN NAMIBIA,
SOUTH AFRICA AND THE USA: A COMPARATIVE
ANALYSIS
J H AKWENYE
9967834
DISSERTATION TO THE FACULTY OF LAW AS PART
FULFILMENT OF THE LLB DEGREE
29TH SEPTEMBER 2000
SUPERVISOR: MS. E. CASSIDY
2
CONTENTS
A.
INTRODUCTION ………………………………………………3
B.
ORIGIN AND NATURE ………………………………………4
B1. Common law and constitutional review………..…4
C.
THE HIERARCHY AND CONSTITUTIONAL REVIEW
POWERS OF COURTS IN THE THREE STATES ………7
C1. American Model ………………………..………………8
C2. Austrian Model …………………………………………9
D.
COMPARATIVE ANALYSIS ………………………………..11
D1. Namibia ………………………………………………..11
D1.1 The Supreme Court ……………………….….12
D1.2 The High Court ………………………………..13
D2. South Africa ……………………………………….....19
D2.1 The Constitutional Court ……………………19
D2.2 The Supreme Court of Appeal ……………..21
D2.3 The High Courts ……..………………………..21
D2.4 Magistrates Courts ……..…………………….22
D3. The United States of America (USA) ……………..25
E.
CONCLUSION ………………..……………………………..30
3
A.
INTRODUCTION
The object of this paper is to make a comparative analysis of
the origin and nature of the powers of the judiciaries of the
U.S.A., Namibia and South Africa to review all types of
legislative enactments is they parliamentary or subordinate.
Regard will be had to the Constitutions of the three states
each of which makes provision for the doctrine of separation
of powers and particularly for the establishment of an
independent judiciary.
The Judiciary in each of the states comprises of a
hierarchical court structure with the courts having different
levels of jurisdictions. Regard will also be had herein to the
specific statutory enactments as well as the relevant
constitutional provisions which deal with the hierarchy and
jurisdiction of the courts to hear, adjudicate and review
legislation which are wholly or in part repugnant to the
supreme law of the state.
There are two major models of constitutional review namely
the USA and the Austrian model. The former is considered
to be decentralised and the latter centralised.
models will be discussed in detail herein.
The two
4
A comparative analysis is embarked upon to highlight the
similarities and differences in the constitutional review
systems of the three states. The decided cases in each state
will clearly demonstrate the practical application of the
judicial constitutional review powers and the impact they
have
in
the
upholding
of
fundamental
rights
in
a
constitutional democracy.
B. ORIGIN AND NATURE
Judicial constitutional review refers to the powers which the
courts have or are vested in them expressly or by
implication to hear and adjudicate on legislation; to give
content and meaning to the values and principles contained
in
a
State
Constitution; to protect and uphold the
constitution; to act as a check on the exercise of state
authority by the other organs of the state; to ensure that the
exercise of power complies with established law and more
importantly to act as a guardian over the potentially
oppressive exercise powers by the other branches of the
state1.
___________________
1.
Yvonne Burns P202-203
5
B1
A
COMMON LAW AND CONSTITUTIONAL REVIEW
distinction
is
drawn
between
constitutional review power.
common
law
and
The former refers to the
inherent power of the court and the latter to the power
vested in the court by the constitution or an enabling act, to
review
legislation,
which
is
inconsistent
with
the
constitution.
Almost a century ago Chief Justice Innes made what is
generally considered to be the most popular description of
what inherent judicial review is when he said: “whenever a
public body has a duty imposed on it by statute, and
disregards important provisions of the statute, or is guilty of
gross irregularity, or clear illegality in the performance of
the duty, this court may be asked to review the proceedings
complaint of and set aside or correct them.
This is not
special machinery created by the legislature, it is a right
inherent in the court2.” This statement by the learned judge
is
particularly
relevant
to
the
judicial
review
of
administrative action but it is nonetheless an unequivocal
demonstration of the judicial review powers vested in the
courts.
________________
2.
Johannesburg Consolidated Investment Company v Johannesburg Town Council
1903 TS III at 114
6
In reviewing administrative actions for example the court is
concerned with the evaluation of fairness, it tries to ensure
that the individual is given fair treatment by the authority to
which he has been subjected. The onus is on the aggrieved
person to prove that the conduct or act of the public official
is invalid.
This aggrieved person does by relying on the
common law grounds of review.
In
the
case
of
Johannesburg
Stock
Exchange
V
Witwatersrand Nigel Limited3 Judge Corbett found that in
order to establish the grounds of review you must show that
the administrative official failed to apply his mind to the
relevant issues in accordance with the behest’s of the
statute and the tenets of natural justice. The learned judge
went on to state that the applicant must prove the following:
“That the decision was arrived at arbitrarily or capriciously
or male fide or as a result of unwarranted adherence to a
fixed principle or in order to further an ulterior or improper
purpose or that the official misconceived the nature of the
discretion conferred upon him and took into account
irrelevant considerations or ignored relevant ones, or that
the decision of the official was so grossly unreasonable as to
warrant the interference that he had failed to apply his
mind to the matter in the manner aforesaid4.”
___________________________
3.
1988(3) SA 132(A)
4.
Ibid P152
7
Both the quotation of Judge Innes C J and the JSE V
Witwatersrand case have particular relevance to the judicial
review of administrative actions.
Constitutional review on the other hand refers to the review
power vested in the court in terms of the constitution, either
expressly or by implication to review legislation partly or in
whole, which is in conflict with the supreme law.
C.
MAJOR MODELS OF JUDICIAL CONSTITUTIONAL
REVIEW
Judicial constitutional review of legislation as we know it
today was developed in the United States of America but
has its origin in the philosophy and jurisprudence of
natural law and the belief that human conduct and laws
should be subject to fundamental and immutable precepts
which have a natural divine origin and sanction5. According
to the doctrine of natural law there is a supreme law and a
lower law and the people have the right to disobey and
nullify the lower law if it is in conflict with the supreme law;
this rudimentary concept has developed into judicial review.
_________________
5.
Pritchett the American Constitution P160 as referred to in CSAC potnote 87 P15.
8
There are certain basic conditions, which need to be met by
a Judicial System to allow the courts to exercise judicial
constitutional review power, namely:
a)
The state organs must be organised in accordance with
the doctrine of separation of powers.
The legislature
i.e. the lawmaker must be distinct from the judiciary
i.e. the reviewer of the law to avoid arbitrariness.
b)
There must be a constitution in existence against
which the inferior law will be gauged and evaluated.
The constitution must be written to enable the judges
to interpret it and to hear and adjudicate matters
involving the validity of legislation.
c)
The constitution must be supreme to ensure that
legislation which is in conflict with or repugnant
thereto will be invalidated by the courts. The principle
of constitutional supremacy is a condition sine qua
non-for the development of judicial review.
d)
A constitution must be rigid and its rigidity must be
guaranteed by itself.
The provisions relating to the
amendment of the constitution must be difficult and
cumbersome to avoid frequent and free amendment by
the
legislature.
Important
provisions
of
the
constitution e.g. fundamental rights and freedoms
should be entrenched.
e)
A state constitution that expressly or by implication
vests review powers in the judiciary enables the judges
to
go
beyond
concrete
adversary
litigations
and
9
exercise judgements effecting general legal policy of the
state.
There are two major models of constitutional review
viz. the American model and the Austrian model.
C1. AMERICAN MODEL
The USA has a decentralised or defused system of judicial
constitutional review in which all the courts within the
hierarchy are vested with review powers. Cases concerning
constitutional
issues
e.g.
the
invalidation
of
federal
legislation is not dealt with in special courts but by any
court within the hierarchy.
This system has also been adopted by some states in SouthAmerica, such as Argentina and Mexico, the Scandinavian
countries like Norway, Sweden, Denmark and Finland; by
Japan; and by Switzerland and Greece in Europe.
C2. AUSTRIAN MODEL
On the contrary most European and some African States
have adopted the Austrian model appropriately called so
because Austria was the first European state to introduce
this centralised or concentrated and abstract model of
judicial constitutional review.
In the Austrian model the
review power is vested in the Supreme Court of a state or a
10
special court.
The system is more popular or common in
Civil Law traditions. Austria introduced this model in its
1920 constitution and then established of the Austrian High
Constitutional Court in the same year.
Germany
established
in
1951
the
German
Federal
Constitutional Court with not only constitutional review
power but also review powers relating to election of
parliamentarians, cases against the head of state, disputes
between state organs etc. Italy and France established the
Italian Constitutional Court and the French Constitutional
Council in 1956 and 1959 respectively.
In Africa common law states like Guinea, Uganda, South
Africa have systems based on the Austrian model.
In Namibia, however, both the Supreme Court and the High
Court have constitutional review powers (Cultura 2000
case).
The differences between the two models are to be seen in
the way such review is organised which account for the
differences in the institutions and political culture of the
different countries. The USA has introduced a decentralised
system of constitutional review where ordinary courts within
the
hierarchy
constitutional
of
courts
nature
can
without
deal
with
special
cases
or
of
a
additional
jurisdiction been accorded to them by the constitution. The
11
USA is progressively recognising the judiciary as a third
power whereas the European constitutional theory only
recognises legislative and executive power.
The
vesting
of
constitutional
review
power
in
a
constitutional Supreme Court, High Court or Special Court
in the Austrian model, is to enable such a court to monitor
the exercise of the three essential functions of the state and
to ensure that they are exercised within the ambit of the
constitution.
The two models have more similarities than differences e.g.
a)
The
politicians
who
would
naturally
take
into
consideration the appointees’ political inclinations
appoint the judges.
b)
The judges in the two models interpret the laws in
favour of the constitution to ensure its supremacy.
c)
There are increasing similarities in the way the courts
in the two models conduct their business.
The US
Supreme Court for example does not hear all the cases
referred to it but pronounce itself only on some of the
constitutional
courts
in
the
Austrian
model
do
likewise.
d)
The constitutional courts are increasingly hearing and
adjudicating on non-constitutional matters to alleviate
workloads on the other courts.
12
e)
The hearing and adjudication of cases relating to the
protection of fundamental rights and freedoms is
another common foculpoint of the models.
D. COMPARATIVE ANALYSIS
Let us consider the hierarchy and constitutional review
powers of the courts as an entry point to the comparative
analysis of the subject matter under discussion.
D1
NAMIBIA
The hierarchy of the courts in Namibia consists of:
a)
The Supreme Court
b)
The High Court
c)
The Lower Courts
Article 78 of the Namibian constitution provides that the
judicial power shall be vested in the courts, which shall be
independent and subject only to the constitution and the
law.
D1.1
THE SUPREME COURT
The Supreme Court has jurisdiction to hear and adjudicate
inter-alia upon appeals, which involve the interpretation,
implementation and upholding of the constitution and the
fundamental rights, and freedoms guaranteed thereunder6.
_________________
6.
Article 79
13
Article 19 of the Supreme Court Act7 provides that the
Supreme Court has the power to confirm, amend or set
aside the judgement or order, which is the subject matter of
the appeal, and to give any judgement or make any order,
which the circumstances may require.
It also has
jurisdiction over matters referred to it for a decision by the
Attorney-General as happened in Ex Parte – Attorney
General: In re-corporal punishment by Organs of State8.
Article 87(c) of the constitution states that the Attorney
General has the power to take action necessary to protect
and uphold the constitution. The question in this case was
whether
the
imposition
and
infliction
of
corporal
punishment by or on the authority of any organ of state
contemplated in legislation was per se, or in respect of
certain categories of persons or in respect of certain crimes
or offences, in violation of Article 8(2)(b) of the constitution.
The imposition of corporal punishment fell in two categories:
legislation permitting judicial and administrative corporal
punishment and corporal punishment in schools.
The Supreme Court held that even if punishment was not of
a sufficiently serious nature to amount to torture or cruel
treatment the fact that it constituted degrading punishment
would be enough to render it unconstitutional.
__________________________
7.
Act 15 of 1990
8.
1991 (3) SA 76
14
D1.2
THE HIGH COURT
Article 82 of the constitution of Namibia provides that this
court shall have jurisdiction to hear and adjudicate upon all
civil disputes and criminal prosecutions, including cases,
which involve the interpretation, implementation, and
upholding of the constitution and the fundamental rights
guaranteed thereunder.
The High Court Act no 16 of 1990 provides amongst others
that the High Court shall have jurisdiction over all persons
residing or being in and in relation to all causes arising and
all offences triable within Namibia and all other matters of
which it may according to law take cognisance of.
During 1985 the South African Government sponsored
interim
government
Fundamental
Rights
of
SWA
and
introduced
Objectives
in
a
Bill
of
Namibia.
(Proclamation R101 of 1985)
Although the South African occupation and administration
of Namibia was illegal in the eyes of the oppressed majority
in the territory and the international community the Bill of
Fundamental
Rights
was
a
constitutional
jurisprudential watershed development.
and
15
There was a clear break from the South African legal
system. The Namibian Courts could henceforth review the
statutory enactments as well as the acts of the organs of the
state and officials with regard to i.a unlawful arrests,
unlawful detention, prosecutions and other infringements.
The
judiciary
Fundamental
upheld
the
Rights
and
provisions
Objectives
of
in
the
Bill
the
of
pre-
independence era as evidenced by the following court
decisions:
a)
Cabinet for the interim government of SWA v Bessinger
1989 (1) SA 618 (SWA)
In this case Bessinger and others were arrested and
detained in terms of section 6(1) of the terrorism act 83
of 1967 for allegedly with holding Information relating
to terrorists and their activities. Both the single judge
and the Full Bench of the High Court ruled in favour of
the liberation of all the six detainees on the grounds
that i.a. the provisions of the Terrorism Act were in
conflict with the provisions of the Bill of Fundamental
Rights and Objectives.
b)
In Katofa v Administrator-General for SWA and
Another 1985(4) 211(SWA) K was detained under AG28
a state security Act and his attorney was denied access
to him the court held that the Administrator General
was obliged to divulge its reasons to cause the arrest
16
and detention of K to enable the court to determine
whether the reasons did justify a detention in law.
c)
In S v Heita 1987 (1) 311 (SWA) it was held that in as
much as the provisions of the Terrorism Act were in
conflict with the provisions of Bill of Fundamental
Rights and Objects such conflicting provisions were
regarded as being subject to the provisions of the Bill
of Rights.
d)
The constitutional review power of the judiciary before
independence was confirmed in the case of Ex Parte
Cabinet for the Interim Government of SWA: in re
Advisory Opinion I.T.O. section 19(2) Proclamation
R101 of 1985 1988(2) SA 832 SWA when the Supreme
Court of SWA held that it had limited power to review:
(i) legislation of the Legislative Assembly, (ii) laws made
prior to the establishment of the Legislative Assembly
including those made by the Administrator-General.
The courts have the competence to determine the
internal proceedings of parliament9. Judge Levy held
in the case of the Federal Convention, Namibia v
Speaker, National Assembly, Namibia10 that the court
__________________
9.
Naldi P21.
10.
1994(1) SA 177 at P191-192
17
of law, will have jurisdiction to ensure that there is
compliance
with
provisions
relating
to
internal
arrangements of one of the houses of parliament
unless such jurisdiction is specifically excluded. They
also have jurisdiction to sever legislation and to
declare unconstitutional the offending provisions only,
declare them unconstitutional and retain those that
comply with the provisions of the constitution11. The
constitutional review powers of the courts came to the
fore in the celebrated case of:
CULTURA 2000 V GOVERNMENT OF THE REPUBLIC OF
NAMIBIA12
Cultura 200 is an Association not for gain whose main
object was to maintain, develop and promote the cultures
and languages of certain western European cultural groups.
The Association was granted certain favours by then
Administration for Whites.
The Parliament of the Republic of Namibia passed the State
Repudiation Act (Cultura 2000), Act 32 of 1991 with the
main object to repudiate the actions of the administration
_______________
11.
Federal Convention, Namibia v Speaker, National Assemble, Namibia
12.
1994 (1) SA 407
18
for whites towards Cultura 2000 as well as to repudiate
other acts performed by the previous administration or a
minister or official thereof prior to independence.
Cultura 2000(Applicant) applied to the High Court for an
order declaring the whole Act unconstitutional on the
grounds stated in the application.
High Court declared the whole repudiation Act to be
unconstitutional on grounds other than those raised by the
applicants13.
The High Court appears to have based its decision on the
following two propositions:
(i)
All the actions of the previous administration in selling
property and donating moneys to the first respondent
were “completed” or “implemented” acts leaving the
new state with no further obligation to perform;
(ii)
Upon proper construction of article 140(3) of the
constitution the legislature is only entitled to repudiate
acts which had not been “completed” by the previous
administration and which would therefore saddle the
new state with obligations if they are not repudiated in
terms of article 140.
____________________
13.
Ibid P416
19
The Supreme Court did not agree with this finding and
overruled it in part holding that article 140 (3) of the
constitution creates a legal fiction on the one hand whereby
the
acts
of
the
previous
administration
are
deemed
fictitiously to be the acts of an independent Namibia, while
on the other hand it enables the true position to be restored
through the repudiation of this fiction by legislative
enactment so that the acts of the previous administration
are no longer deemed to be the acts of the new state. Upon
proper interpretation of article 140(3) it conferred upon
parliament a wide power of repudiation thus saving part of
the challenged legislation.
Consequently the Supreme Court set aside the order of the
High Court, declaring the whole repudiation Act to be
unconstitutional, and declared part of the Act to be
constitutional and therefore valid. It however recommended
that “the cleanest and nearest course would be for
parliament to consider the enactment of a new legislation14”.
The constitutional review power of the Namibian courts were
further demonstrated in the Freiremar SA V ProsecutorGeneral of Namibia (unreported)15 where the court held that
if at all possible it would be entitled to sever the bad from
the good and only declare unconstitutional that part of the
legislation which militates against the provisions of the
constitution.
______________
14.
15.
Ibid P429
Judgement delivered on 8/4/1994
20
D2. SOUTH AFRICA
Section 165(1) of the 1996 Constitution provides that the
judicial authority in the Republic of South Africa vests in
the courts of law which are independent and subject only to
the constitution, and such other laws of the land which they
must apply impartially and without fear, favour or prejudice.
The constitution makes provision for the following court
structure in order of their rank in the judicial hierarchy;
section 166 (a)-(e)
a)
The Constitutional Court.
b)
The Supreme Court of Appeal.
c)
The High Court, including any High Court of Appeal
that may be established by an Act of Parliament to
hear appeals from the High Courts.
d)
The Magistrates’ Courts.
e)
Any other court established or recognised in terms of
an Act of Parliament e.g. the small claims court
including any other court of the status similar to either
the High Court or the Magistrates Courts.
D2.1
THE CONSTITUTIONAL COURT
The South African Constitutional Court is a specialist court
and
the
highest
court
in
that
land
in
respect
of
21
constitutional matters.
Before the introduction of the
Constitutional Court there were lengthy and heated debates
concerning the co-existence of this court and the Appellate
Division.
Because of the policy of apartheid of the old
dispensation it was felt that a specialist court must be
established to implement the new dispensation in order to
give credible and cogent effect to the supremacy of the
Constitution and a human right culture.
Consequently
it
was
decided
that
the
function
of
constitutional adjudication was too fundamental to be
entrusted to the Appellate Division of the Supreme Court
which had a poor record especially in the upholding human
rights issues.
It was felt that the Appellate Division was
patently lacking in legitimacy for it to be expected to give
expression boldly and imaginatively to the characters and
ethos of the new constitutional dispensation16.
The
constitutional court may only decide constitutional matters
and is the guardian of the Supreme Law of the land.
In
addition section 167(4) of the South African Constitution
grants exclusive jurisdiction to this court to decide:
(i)
disputes between organs of the state in the national or
provincial sphere concerning the constitutional status,
powers or functions of any of the organs of state;
________________
16.
CSAC P223
22
(ii)
on the constitutionality of any provincial bill;
(iii)
Application envisaged in section 80 or 122 of the
Constitution;
(iv)
on the constitutionality of any amendment to the
Constitution;
(v)
that parliament or the President has failed to fulfil a
constitutional obligation;
(vi)
This
Certify a provincial constitution.
court
has
the
final
say
on
the
validity
or
unconstitutionality of an Act of Parliament, a provincial
statute or conduct of the President. Any order of invalidity
by the Supreme Court of Appeal, a High Court, or a court of
similar status must be confirmed by the constitutional court
before it can have any force17.
D2.2
THE SUPREME COURT OF APPEAL
This court was previously known as the Appellate Division.
Its jurisdiction to hear appeals now includes constitutional
matters. It is the highest court of appeals in all matters of
non-constitutional nature.
D2.3
THE HIGH COURTS
Previously these courts were known as the provincial or
local divisions of the Supreme Court of South Africa.
____________________
17.
Section 166(5)
23
They may decide any constitutional matter except if it falls
only within the jurisdiction of the Constitutional Court or is
assigned to another court by an act of Parliament.
D2.4
MAGISTRATES COURTS
Although these courts do not have jurisdiction to hear and
adjudicate on constitutional issues, the possibility that
constitutional issues may arise in them can not be
discounted.
Should it happen the presiding officer in the
lower court might postpone the proceedings to enable the
accused to apply to the local or provincial division of the
Supreme Court for the case to be heard there.
A classical example of the exercise of judicial review power
by the Constitutional Court happened in the case of Hugo V
State President of the Republic of South Africa and
Another18. Briefly the facts are that Hugo (Applicant) was a
convicted prisoner serving a sentence of 15 years with effect
from 31st December 1991.
On the 27th June 1994 the State President signed the State
Presidential Act 17 of 1994 in terms whereof certain
categories of prisoners where pardoned and others received
a remission of sentence, but unfortunately for Hugo he did
not fall in any of the categories.
________________________
18.
1996(6) BCLR 876(D)
24
Applicant applied to court seeking his release.
The
Presidential Act expressly stated that the measure would
apply to “all mothers in prison on 10th May 1994, with
minor children under the ages of twelve years.
The
provision also listed the offence, which was suited for
qualification, but the applicant did not qualify because he
was convicted for robbery.
The applicant was however in
prison at the material date and was the father of a child
under the age of 12 as his son was born on the 11th
December 1982 and the mother died on the 3rd May 1987.
Applicant challenged the granting of the remission of the
sentences by the Presidential Act contending that it was
discriminatory on the grounds of gender and hence
unconstitutional.
He further contended that the pardon
amounted to an improper exercise of the prerogative powers
of the President and should be the subject of judicial review.
The power of the President in this case was derived from
section 82(1)(k) of the constitution, which provide that: “to
pardon or reprieve offenders, either unconditionally or
subject to such conditions as he or she may deem fit, and to
remit any fines, penalties or forfeitures19”. Applicant relied
on section 8(2) of the 1993 constitution, which prohibited
unfair discrimination generally.
______________
19.
Ibid P880
25
He
argued
further
that
the
constitutional
provision
discriminated against him because he is not the mother of
his son and the latter’s surviving parent is not a woman.
The Durban and Coast Local Division of the Supreme Court
held that the Presidential Act was discriminatory and in
breach of the provisions of section 8 of the Interim
Constitution and granted the State President six months
time to rectify the situation.
The president of the
constitutional court stated that parliament is no longer
supreme. Its legislation and the legislation of all organs of
state are now subject to constitutional control20 and
therefore reviewable by the courts.
In
another
judgement
which
demonstrates
the
constitutional review power of legislation by the court it was
held in the case of Executive Council of Western Cape
Legislature and others V President of the Republic of South
Africa21 where the President, acting in terms of powers
granted to him, amended part of the Local government
transition act to which the Western Cape Legislative
objected
claiming
unconstitutional,
that
that
the
the
amendment
amendment
transferred
was
its
legislative powers to the President who could now legislate
in their stead.
__________________________________
20.
Fedsure Life v Greater Johannesburg TMC 1999(1) SA 374 at 393
21.
1995 (10) BCLR 1289 CC
26
The Cape provincial Division rejected the Applicants’ claim
and they appealed to the Constitutional Court, which
invalidated
both
parliament’s
the
President’s
amendment
of
the
Proclamation
Local
and
Government
Transition Act22.
The constitutional review powers of the Constitutional
Court, the Supreme Court of Appeal and the High Courts
are indisputable in South-Africa and in the words of former
president Mandela when reacting to the judgement of the
court in Western Cape Legislative v President (footnote 21):
“This judgement is not the first nor the last in which the
Constitutional Court assists both the government and the
society
to
ensure
constitutionality
and
effective
governance”23.
D3. THE UNITED STATES OF AMERICA (USA)
The establishment of an independent judiciary in America
existed long before the colonies separated from England.
The power to constitute courts in the American colonies was
vested in the governor and council which were creatures of
the king of England24.
_________________
22.
CSAB P6
23.
Ibid P7
24.
American Constitutional Law P142
27
The constitution of the USA vests the judicial power in one
Supreme Court and in such inferior courts as congress may
from time to time ordain and establish.
A schematic exposition of the hierarchy of the court in the
USA25 looks as follows:
US SUPREME COURT
Federal Courts of Appeal
Court of Appeal
for the Federal
Circuit
US Tax
Court
US Claims
Court
Federal
District
Court
US Court
of International Trade
Three-Judge
Courts
US Court of
Military Appeals
States Courts
of Last Resort
District of Columbia
Court of Appeals
Military Trial
Court
Superior Court
of the District
of Columbia
Magistrates
The US constitution does not expressly vest judicial review
power with the US Supreme Court or any other court in the
hierarchy but because of decentralised constitutional review
system
federal
courts
have
jurisdiction
to
hear
and
adjudicate constitutional cases.
In the locus classicus case of Marbury v Madison22 the US
Supreme
Court
assumed
the
congressional legislation invalid.
______________________
25.
Ibid P160
26.
1 Cranch 137, 2 L. ed. 60(1803)
power
of
declaring
28
Briefly the facts were Thomas Jefferson an anti federalist,
defeated John Adams, a federalist and incumbent president
in the presidential election of 1800.
President
Adams
then
appointed
John
Marshall
his
Secretary of State as the fourth Chief Justice of the USA.
Marshall assumed office as Chief Justice but continued to
serve
as
secretary
of
state
till
the
end
of
Adams’
administration. President Adams further appointed federal
judges and a number of justices of the peace all federalists
who were all confirmed by the Senate. Adams signed and
sealed the commissions but due to time pressure the
commissions of William Marbury and a few others could not
be finalised by the time Thomas Jefferson assumed office as
President of the USA.
The latter ordered his new Secretary
of State, James Madison to withhold the delivery of the
commissions of W Marbury and others.
This lead to Marbury instituting proceedings seeking a writ
of mandamus in the Supreme Court to compel Madison to
deliver the commissions.
The court issued a RULE NISI
ordering Madison to show cause why a mandamus should
not issue27”.
___________________
27.
Constitutional Law: Lockhart and others P1
29
Whilst the case was still pending the Republican Congress
moved to repeal the Circuit Court Act in order to invalidate
the appointments made by the Federalist Congress of
defeated President J Adams.
In a landmark decision Chief Justice Marshall of the US
Supreme Court declared the Republican Congressional Act
to be invalid on the ground that it was in conflict with the
constitution of the USA, the Supreme law.
The learned
judge found that the court’s power to review legislation was
implied in the US constitution.
The power to review legislation is not restricted to the
Supreme Court of the USA only but extends to the federal
courts.
The federal courts have power to hear and
adjudicate constitutional matters at first instance.
The
federal courts, through the power of constitutional review,
are vested with power to “govern” – to regulate other actors –
such powers they would not possess if the federal judiciary
business consisted of nothing but statutory interpretation
and interstitial common lawmaking.
At the same time,
however the fact that federal courts possess power of
constitutional
review
paradoxically
underscores
their
ultimate dependence on congress. They cannot apply their
review powers to question the constitutionality of any
government action unless congress first authorises them to
exercise jurisdiction28.
28.
American Constitutional Law: L. Tribe
30
The three states have all written constitutions, which each
provide for the Doctrine of Separation of Powers between the
executive, the legislative and the judiciary.
Some 1789 the US Congress has passed various statutes
decline with the jurisdiction of the US Supreme Court lower
it was only since 1914 that the US Supreme Court was
clothed with constitutional review powers29.
This authorisation is in addition to the US Supreme Court’s
jurisdictional powers to review state court decisions, but
this does not make it a court specialising in constitutional
review cases like the constitutional court in the Austrian
model.
The South African Parliament during the apartheid era had
absolute legislative power and the courts did not have any
review powers to question the validity of parliamentary
statutes.
The 1983 constitution of apartheid South Africa expressly
stated that “no court of law shall be competent to enquire
into or pronounce upon the validity of an Act of Parliament”.
__________________________
29.
Constitutional law-Lockhart a.o P55
31
The law was the main mechanism whereby the violation of
human rights was effected and it was very rare to find a
judicial officer remarking on the racist and unacceptable
character
of
apartheid
laws,
leave
alone
their
unconstitutionality.
Both the Interim Constitution, Act 200 of 1993 and the
1996
Constitution
have
pertinently
addressed
the
supremacy of the constitution and the constitutional review
of legislation which is repugnant to the constitution hence
the creation of the Constitutional Court. The final decision
in constitutional issues lies in the Constitutional Court in
South Africa.
The pre-independence laws and the administration of
justice in Namibia were the same as in South Africa.
Namibia was an extension of apartheid South Africa. The
constitution of the Republic of Namibia however established
a free and democratic state with an independent judiciary.
Article 78 of the constitution vest judiciary powers in the
courts with the Supreme and the High courts having the
jurisdiction to hear and adjudicate cases of a constitutional
nature. Apart from the fact that constitutional review in the
USA is based on a decentralised, defused system, and in
Namibia and South Africa on the Austrian model, which is
centralised and concentrated, the practical exercise of the
judicial constitutional review powers and effect in the three
states is the same.
32
E.
CONCLUSION
Judicial constitutional review should be viewed against the
background of the function of CONSTITUTIONAL CONTROL
of the Courts. There are those who hold the viewpoint that
judicial constitutional review power should be vested in a
body which consist of representatives who have been elected
by the majority of the people.
On the other hand there are those who contend that review
power must vest in the judiciary which performs a
legitimate judicial function and is better positioned and
qualified to effect constitutional control. The confirmation
by the US Supreme Court of the constitutional review power
of the courts was hailed by some and condemned by others.
Chief Justice Marshall when confirming this; reasoned that
the US constitution was clearly intended by its drafters to
be
the
supreme
law
of
the
land.
Consequently
congressional legislation in conflict with the constitution
had to be declared invalid. This only the courts can do.
The decision is further considered by some to be an
encroachment of the judiciary on the legislative authority
but by others as a performance of the control function by
the court
33
Prof. G E Devenish quotes the late President Paul Kruger as
referring to judicial constitutional review as “a principle
invented by the Devil30”.
The proponents of the anti-judicial constitutional review
power argue further that the members of the legislature are
elected by the majority of the electorate and are therefore
clothed with the power to make legislation. It is therefore
unbefitting that the appointed members of the judiciary
should have power to dictate what provisions should be
contained in a legislation and even if legislation or
provisions thereof are contrary to the constitution the
legislature represent the majority of the people and such
legislation should go through without opposition from the
judiciary.
The function of the judiciary is to interpret the law not to
make it. In support of the principle of judicial constitutional
review I humbly submit that there is more to constitutional
democracy than mere majority rule.
phenomenon,
in
which
the
majority,
It is a complex
minorities
and
individuals have rights and obligations, which the courts
must interpret, apply and protect.
In so doing, constitutional democracy must amongst others
give expression to the universal moral values embodied in a
_______________
30.
CSAC P.220
34
Bill of Rights, which is contained in the constitution of each
of the three states.
The courts as repeatedly said herein, are the guardians, the
custodians of the constitution and they have the duty to
protect and uphold the constitution. The legislature even if
it consists of members who have been voted in by the
majority of the electorate have no right to trample on the
supreme law of the state.
Judicial
constitutional
review
power
is
an
essential
component of the control mechanism of the judiciary
without which the latter cannot properly fulfil its obligation
of monitoring the other two organs of state in the exercise of
their legislative and executive functions and of ensuring
that the supreme law remains sanctus.
35
BIBLIOGRAPHY
1.
Prof. G.E. Devenish: Commentary on the South African
Constitution, 1998. (CSAC)
2.
Laurence H. Tribe: American Constitutional Law, 1978
3.
Yvonne Burns: Administrative Law under the 1996
constitution, 1999.
4.
Naldi: constitutional Rights in Namibia, 1995.
5.
Prof. G.G. Devenish: A Commentary on the South
African Bill of Rights, 1999. (CSAB)
6.
The Constitution of the Republic of Namibia.
7.
W.
Lockhart,
Kamisar,
Choper,
and
Shiffin:
Constitutional Law, 6th edition, American Casebook
Series.
8.
West Group: Federal Civil Judicial Procedure and
Rules 1998 Ed.
9.
Louis Fisher: American Constitutional Law
10.
The Devil’s work? Judicial Review Under a Bill of
Rights in South Africa and Namibia: Eric B Jornlund