Omari Jackson
Article 74 spells out the stipulations of formally amending
the constitution. The hardest parts of
the constitution to amend are section one and that actual section that covers
amendment procedure. In order to amend
those sections, 75% of the National Assembly’s votes are required along with the
consent of the National Council of Provinces, which requires 6 out of the 9
provinces’ votes. That is logical
because section one contains the framework of the constitution which state the
general rights and requiring a large majority lessens the risk of the majority
stripping the rights of the minority.
Chapter two of the constitution also has unique stipulations. In order to amend this chapter 66%,
two-thirds, of the National Assembly’s vote is required along with the National
Council of Provinces’ 6 out of 9 votes.
All other amendments simply require the two thirds vote of the
National
Assembly, unless the amendment deals in matters that directly affect the
council, alter the powers or boundaries of the provinces, or if the amendment
targets something that directly deals with provincial matters. What that means is most amendments only
require the supermajority of the National Assembly. The votes of the National Council of
Provinces is only considered when they will be directly affected by an
amendment in order to lessen the chances of a majority in the national assembly
from infringing on their rights (1).
The unconventional nature of the ratification process for
South Africa makes the distinction between amendments and ratification
difficult. The party in charge of
ratifying the constitution was the Constitutional Court. The Constitutional Court was utilized in
order to make sure that the needs of all the parties were being met by
verifying the embodiment of all thirty-four of the constitutional principles
put forth by the MPNP. On first glance I
would say it is, of course, not reflective of that trend because the
constitution had to be ratified by the Constitutional Court and not the
National Assembly or the National Council of Provinces (2). The ratification of the constitution does,
however, seem to somewhat mirror the informal amendment process, which is also
left up to the Constitutional Court.
Lijphart’s correlation between rigid constitutions and the
power of judicial review holds true for South Africa (3). Their rigid constitution is in fact
accompanied by strong powers of judicial review which is also predicted when he
mentions that this is usually the case anytime there is a special body with the
task of reviewing constitutionality. The
Constitutional Court is made up of eleven judges appointed by the president and
it is only required that eight of them reside over a case. That means that a majority vote in the
Constitutional Court can be as small as five (5). Judicial review in South Africa is active
because the decisions of other courts can be reviewed by them without an
application for review (4). The court
also deals in common law. This is
evident by the fact that they do not directly decide on the fates of
individuals accused of crimes (5).
Resources:
1.
Constitute Project
2.
CCW Introduction file from CTOOLS Resources
3.
Lijphart Patterns of Democracy
5.
Constitutional Court of South Africa
http://en.wikipedia.org/wiki/Constitutional_Court_of_South_Africa#Appointment_procedure_and_tenure
http://en.wikipedia.org/wiki/Constitutional_Court_of_South_Africa#Appointment_procedure_and_tenure
Lauren Gallagher
ReplyDeleteOne important aspect of comparing the ratification and the amendment process of the South African Constitution of 1996 is by comparing the degree of majoritarian versus consensus (1) avenues used in each of the specific processes.
When we look to the drafting and ratification process of the South African Constitution we see a movement from a consensus creation process to a majoritarian ratification with consensus elements. The writing of the document itself included both the sitting government and the National African Congress, making it consensus. The ratification process first utilized the a more majoritarian process post the election of 1994, but finished with ratification in the Constitutional Courts, as Omari mentioned above. On this point I would argue with Omari, in my view the ratification was a joint venture between the elected body, making it both consensus and pluralistic, followed by the the affirmation of basic principle legitimacy by the Constitutional Court. I would agree that the informal amendment process mirrors the ladder part of the the ratification process, but I would also go further and argue that the formal amendment process as outlined in Article 74 (2) tends to mirror the first part of the ratification process in most of its iterations.
Since the formal amendment process is concentrated in the elected officials, either in the national assembly or the assemblies within the provinces, it mirrors the first part of the ratification processes. Furthermore in both the formal amendment and ratification processes the process stands independent from any direct intervention of the citizens, either from local conventions or referenda.
Ultimately the amendment process, much like the ratification process, if divided into majoritarian and consensus processes. The majoritarian processes involve the Constitutional Courts interrupting what is higher law and what is considered “constitutional” and changing said definition via court cases. The consensus processes focus on using elected officials to create and redefine what constitutionalism is in South Africa.
Resources:
1)Lijphart Patterns of Democracy
2)Constitute Project
https://www.constituteproject.org/constitution/South_Africa_2012
I agree with both Omar and Lauren’s point that the informal amendment process reflects the procedure by which the South African constitution was ratified. However, I disagree with Lauren regarding the formal amendment procedure; to me it seems that Omar’s initial assessment was correct. Though it is true that the first stage of constitutional ratification involved the approval of the national legislature, and that this is also true in the formal amendment procedure, the second stage of ratification-- review by the Constitutional Court-- lent the process a crucial element of consensualism. The absence of judicial review from the amendment process is a far more significant indicator of majoritarian characteristics within the South African constitution than the procedural similarities regarding legislative approval were an indicator of consensualism. Article 74 outlines an amendment procedure that is entirely within the domain of the national legislature. (1) The scope of control afforded to the legislature (and withheld from the judiciary) by this article opens the door to potentially high degree of constitutional flexibility. Constitutional rigidity being central to consensus-based government (2), the lack of judicial review in the formal amendment procedure seems to suggest a majoritarian-leaning framework. To reiterate from previous posts both this week and earlier in the semester, South Africa presents a complicated case regarding consensus and majoritarian models of democracy. Though the ability of the Constitutional Court to informally amend the constitution via judicial rulings is clearly reflective of consensus-based institutions, the absence of judicial review in the formal amendment procedure is equally reflective of majoritarian democracy.
ReplyDelete(1) https://www.constituteproject.org/constitution/South_Africa_2012
(2) Lijphart, Patterns of Democracy p. 219
Jacob Levine
ReplyDeleteI agree with Nicholas that South Africa chooses both paths when it comes to amending its constitution, the formal amendment procedure being majoritarian and the informal being consensual. However, it is worthwhile to examine the ratification process of the interim constitution, which in many ways foreshadows the final ratification procedure.
First, it is important to note that the interim constitution was only in effect between 1994 and 1997, after which the final constitution was adopted. Because it governed for such a short period of time, the interim constitution cannot be viewed as a true constitution but rather as an initial framework on which the National Assembly built the final document.
The South African Constitution of 1993 was adopted as a transitional constitution by which the country would be governed while it drafted a final constitution, which also provided the assembly that would draft it. However, the initial breakdown in negotiations over the interim constitution came over a disagreement as to how it would be adopted. The National Party, fearing a lack of protections for minorities, insisted on a 75% supermajority, essentially giving themselves a veto. The negotiation process failed, and it was not until the MPNP was assembled that the drafting process continued. (1)
When viewing those conflicts as a precursor to the final constitution, the unorthodox approach taken towards amendment begins to make sense. The first section spells out protections for minorities. It would follow, then, that the National Party would fight for it to be the most difficult to amend. The rest of the constitution, which has less to do with protections of rights and more to do with the structure of governance of the country. Again, it would follow that the ANC would fight to ensure they had real power to amend these parts more easily, revoking the NP's veto power.
Sources:
(1) South African Constitution of 1993 http://en.wikipedia.org/wiki/South_African_Constitution_of_1993
(2) http://www.gov.za/documents/constitution/constitution-republic-south-africa-act-200-1993
(3) http://www.gov.za/documents/constitution-republic-south-africa-1996
Daniel Perez
ReplyDeleteI would generally agree with most of Omari’s points, and I would like to specifically expand upon the system for judicial review under the 1996 South African Constitution. Matters of constitutional law are handled by the South African Constitutional Court, which I would argue has very strong powers of judicial review and can function actively and autonomously.
The Constitutional Court has very strong powers of judicial review. Chapter 8 of the Constitution outlines the procedures for appointing judges, who can not be sitting members of Parliament, government, or any political party - meaning that the court is meant to act autonomously and without deference to the larger government (1). The court can overrule acts of Parliament and executive actions, and has allowed for significant changes through its rulings over the course of its existence (1). The court and it’s decisions have been responsible for such societal changes as abolishing the death penalty and allowing for the government recognition of same-sex marriage, which further reinforces the concept that the court has strong powers of judicial review (3).
Generally, the Constitutional Court is more active than it is passive in its powers of judicial review. As stated above, the Constitutional Court consists of eleven justices but can technically reach a majority decision with as few as five justices in consensus (1). The court was originally the highest level of the circuit of appeals - similarly to the United States Supreme Court - but now has the power to hear and rule on any case that the justices want to. This means that the Constitutional Court justices can be active in pursuing issues that they find important and can oversee the rest of the government with a high degree of flexibility.
1996 Constitution of South Africa (Constitute)
Lijphart Patterns of Democracy
Constitutional Court of South Africa, Landmark Decisions http://www.constitutionalcourt.org.za/site/thecourt/history.htm#cases