AN amendment that can potentially ‘damage’, ‘emasculate’, ‘destroy’, ‘change’ or alter the basic structure of the constitution should be judiciously struck off. This is according to the Court of Appeal judge, Justice Phillip Musonda, in a majority judgement striking down the ninth amendment to the constitution. Justice Musonda agreed with the court’s president, Justice Kananelo Mosito, and Justice Petrus Damaseb while Justices Johan Van Der Westhuizen and Moses Chinhengo dissented.
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Quoting Justice Khanna of the Indian Supreme Court, Justice Musonda said: “No generation has a monopoly on knowledge that entitles it to bind future generations irreversibly, and a constitution that denies people the right of amendment invites attempts at extra-legal revolutionary change. In short, ‘a constitution that will not bend will break.”
Justice Musonda said the justification is that a constitution should mirror the society’s contemporary values.
The question is how far parliament can go in amending the constitution, bearing in mind that the constitution can be undermined by constitutional means.
He said a constitution, which is to some extent a device for preserving certain states of affairs, “might become a device for undermining the very states of affairs it is designed to preserve”.
“The Constitution should be insulated from opportunistic and radical amendments by limiting Parliamentary sovereignty,” the judge said.
“The apartheid political system was sustained by Parliamentary sovereignty as the apartheid laws could not be judicially reviewed,” he said.
“The courts should be the final arbiters as to whether an amendment is constitutionally valid or invalid.”
Quoting the Supreme Court of India, he said parliament “cannot amend the Constitution so as to take away or abridge the fundamental rights”.
He said the constitution gives a place of permanence to the fundamental freedoms of the citizen.
Parliament, he said, could not modify, restrict or impair fundamental freedoms due to the scheme of the constitution and the nature of the freedoms granted under it.
The Supreme Court of India, he said, stated that the fundamental rights were so sacrosanct and transcendental in importance that they could not be restricted even if such a move were to receive unanimous approval of both houses of parliament.
Quoting the late Edgar Stuart Cahn, the American legal philosopher, he said “only justiciable constitutional limitations on parliamentary powers can guarantee that judges can uphold justice and fairness in the face of a sovereign parliament that abuses its powers to enact unreasonable and oppressive laws”.
“Every democratic nation owes a solemn obligation to its judges to curb Parliament’s power,” he said.
He also quoted Professor John Hatchard of the University of Buckingham, saying “the Legislature is not an adequate safeguard and it is important that southern African states start to reassess their constitutional safeguards.”
Justice Musonda said parliament cannot use its limited authority to grant itself infinite authority.
He said the Supreme Court of India decided that “parliament’s ability to alter is not the same as its power to destroy”.
“There is no equivalence between a permissible Constitutional amendment and the one that emasculates the Constitution,” he said.
“One certainty that emerged out of this tussle between Parliament and the Judiciary is that all laws and Constitutional amendments are now subject to judicial review and laws and that transgress the basic structure are likely to be struck down by the Supreme Court.”
In essence, he said, parliament’s power to amend the constitution is not absolute and the Supreme Court is the final arbiter over and interpreter of all constitutional amendments.
Justice Musoda was answering whether parliament has power to amend the constitution.
Staff Reporter
