Deliberative democracy and constitutionalism : the limits of rationality review

• Date: 01 January 2014
• Author: J.L. Pretorius
• Record Number: sapr1_v29_n2_a10
• Published date: 01 January 2014
• Pages: 408-440
• DOI: 10.10520/EJC-797872bfd

BCom BA Hons LLD. Professor of Public Law, University of the Free State.

*

Deliberative democracy and

constitutionalism: the limits of

rationality review

JL Pretorius*

Abstract

Recent political evaluation of rights-based constitutional review of

legislation and governmental policy in South Africa suggests that our most

funda men tal politic al ideal – constitu tional d emo cracy – is interna lly

conflicted. D emoc racy and c onstitutionalism are perce ived by som e to

serve opp osing interests. Th ose who think diffe rently must dem onstrate

the internal coherence of constitutional democracy on two levels. The first

concerns the institutional design of constitutional review, that is, the

procedures, powers and composition of the designated body for

exercising this function. The second concerns the extent to which the

substantive normative standards employed in the course of constitutional

review are ne cess ary to fac ilitate de moc ratic ac counta bility. Th e article

addresses the latter aspect. A deliberative understanding of democracy

prov ides a fruitf ul vanta ge poin t from which to evalu ate the d emo cratic

function of standards of constitutional review. The deliberative model

grounds dem ocracy in the duty of public justification through discursive

engagement. Seen from this perspective, democratically informed

standards of constitutional review must comply with two basic conditions,

namely maximising deliberative equality and participation, and compelling

justificatory accounts for collectively binding decisions in terms of a

constitutionally entrenched, integrative value system. Of all the standards

employed by the courts for the purpose of constitutional review (such as

rationality, reasonableness, fairness, proportionality), a deferential

rationality standard is most problematic in this respect. It can lead to a

narrow instrumentalist perspective for the evaluation of governmental

objectives, which is incapable of facilitating substantive forms of

dem ocratic contr ol tha t could mea ningfully e nrich th e delibe rative b asis

of democratic decision making.

Delibera tive dem ocracy and con stitutionalism 409

Minister of Mineral Resources and National Executive member of the ANC.

1

Tolsi ‘Judicial autonomy frightens JSC’ Mail & Guardian (2012-06-15) available at

2

http://mg.co.za/article/2012-06-14-judicial-autonomy-frightens-the-jsc (accessed 2013-11-21).

Glenister v President of the RSA 2011 7 BCLR 651 (CC) (declaring Ch 6A of the South African

3

Police Service Act 68 of 1995 unconstitutional and invalid to the extent that it failed to secure an

adequate degree of political independence for the Directorate of Priority Crime Investigation).

Justice Alliance of South Africa v President of the RSA 2011 10 BCLR 1017 (CC) (setting aside

4

the President’s decision to extend the term of office of the Chief Justice of South Africa).

Secretary General of the ANC.

5

Mkhabela ‘Full interview: ANC’s Mantashe lambasts judges’ Sowetan (2011-08-18), available at

6

http://www.sowetanlive.co.za/news/2011/08/18/full-interview-ancs-mantashe-lambasts-judges

(accessed 2013-11-15).

Address by President Jacob Zuma, on the occasion of bidding farewell to former chief justice

7

Sandile Ngcobo, and welcoming chief justice Mogoeng Mogoeng, National Assembly, Cape Town,

1 November 2011, available at http: //www.thepresidency.gov. za/pebble.asp?re lid=5159 (accessed

2013-11-12).

Forst ‘The rule of reasons: Three models of deliberative democracy’ 2001 (14) Ratio Juris 345,

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346.

Id 347.

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1 Introduction

The recent past has witnessed high-level political criticism of constitutional

democracy and especially its institutional underpinning by means of judicial

review. Ngoako Ramatlhodi, for instance, has more than once criticised the

1

judiciary for acting in a ‘counter-revolutionary manner’ when courts decided

unfavourably on aspect s of government policy. In his view, these judg ments serve

only to buttress apartheid-era privilege at the expense of majority interests. In

2

criticising the judgments in the Glenister and Justice Alliance cases, Gwede

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Mantashe believes that the judiciary is actually ‘consolidating opposition’ to

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government. The President has also on occasion found it necessary to admonish

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that the ‘powers conferred on the courts cannot be regarded as superior to the

powers resulting from a mandate given by the people in a popular vote’, and to

warn that ‘[w]e must not get a sense that there are those who wish to co-govern

the country through the courts when they have not won the popular vote during

elections’.7

There are many more examples. Most of them seem to share two notable

features. First, reminiscent of the liberal tradition, democracy and

constitutionalism appear to be regarded as principles serving different goals.

They are not conceived as ‘internally connected’, but capable of uniting only

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strategically. Democracy can both protect and threaten liberal principles of justice;

and vice versa. Frank Michelman has observed that, in this tradition, one is

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410 (2014) 29 SAPL

Michelman ‘How can the people ever make the laws? A critique of deliberative democracy’ in

10

Bohman & Rehg (eds) Deliberative democracy: Essays on reason and politics (1997) 145, 152. See

also Habermas ‘Constitutional democracy: A paradoxical union of contradictory principles?’ 2001

(29) Political Theory 766, 767: ‘If the normative justification of constitutional democracy is to be

consistent, then it seems one must rank the two principles, human rights and popular sovereignty’.

Ramatlhodi ‘The big read: ANC’s fatal concessions’ The Times (2011-09-01) available at

11

http://www.timeslive.co.za/opinion/commentary/2011/09/01/the-big-read-anc-s-fatal-concessions

(accessed 2013-11-12).

Ibid.

12

Ibid.

13

Zurn Deliberative democracy and the institutions of judicial review (2007) 225 (emphasis in the

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original).

See Habermas Between facts and norms: Contributions to a discourse theory of law and

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democracy (translated by William Rehg) (1998) 118–131.

ultimately compelled to choose between constitutionalism and democracy as first

principles.10

The second feature is that the perceived internal tension between democracy

and constitutionalism is interpreted against a background of a dialectical

understanding of the ‘historical forc es that gave birth to our Constitution’.11

Ramatlhodi provides one representative example of the operative reasoning. The

Constitution represents a strategic move by the apartheid regime ‘to give up

elements of political power to the black majority, while immigrating substantial

power away from the leg islature and the executive an d vesting it in the judiciar y,

Chapter 9 institutions and civil society movements’. The entrenchment of (white)

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minority privilege has therefore been achieved through a constitutional

arrangement in terms of which the legislature and the executive have been

systematically divested of any real power to bring about fundamental change.13

Historical assessments such as this feed an appraisal of constitutional democracy

that opposes a majoritarian conception of democracy with a minoritarian

conception of constitutionalism. The result is that democracy and

constitutionalism are, in addition, contrasted in ideological and implied race-

related terms.

Against this background, a theoretical defence of the conceptual coherence

of constitutional democracy needs to show how rights-based constitutionalism

can be more than a side constraint against majoritarian preferences. It requires,

as Christopher Zurn s tates, a theory that ‘conceives of constitutional democracy,

not as an uneasy combination of unrelated principles, but rather as internally

related and mutually presupposing’. This may perhaps most convincingly be

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done – as Jürgen Habermas, amongst others, has attempted – through a

theoretical account of how the legitimacy of modern law necessarily draws on the

values and institutions associated with both constitutionalism and democracy.15

This is, however, not the level on which the interconnectedness of democracy and