The Constitutional Court’s workload is crippling — there are ways to fix this

On 19 May, Freedom Under Law (FUL) launched a report analysing the challenges faced by the Constitutional Court as it struggles to deal with an ever-expanding workload, particularly in the form of new applications for leave to appeal.

It appears that, since the 17th constitutional amendment increased the court’s jurisdiction beyond constitutional matters alone and empowered it to hear appeals on general issues of law, the court has become inundated with new applications for leave to appeal, which have trebled since 2010. At the same time, the court is taking longer to deliver judgments.

It therefore seems clear that the increased workload is having a negative impact on the court’s capacity. But the problem is exacerbated by the court functioning in terms of procedures which date back to when it had a far smaller caseload to deal with, and by what the report argues is an inconsistent and unpredictable application of the court’s test for leave to appeal (the “interests of justice” test).

It is crucially important that these challenges be addressed, and addressed effectively. As the highest court in the country, the difficulties experienced by the Constitutional Court impact on the rest of the judicial system – and on public confidence in the courts. In a constitutional democracy which vests such extensive powers in the courts, we can ill afford a loss of public trust.

What then is the way forward for the Constitutional Court? The FUL report makes numerous recommendations, and it is worth dwelling on these in some more detail.

There are a range of options available which can help the court in addressing its crippling workload. In the short term, the court itself can take steps to address some of the issues contributing to the delays in delivering judgments. For example, it could establish clear guidelines on the length and structure of leave to appeal applications and enforce these strictly to ensure that practitioners act in accordance with them.

The court could also develop its own jurisprudence to the application of the interests of justice test. The court’s current practice seldom involves providing detailed reasons when an application for leave to appeal is refused. By delivering substantive judgments in some cases (not all, or the workload challenge will worsen), the court can provide clear guidance on when it will hear matters, which should also help to dissuade practitioners from swamping the court with speculative applications. The establishment of a clear, rules-based test for when leave to appeal will be granted will also fulfil core requirements of the rule of law, namely that the law be certain and easy to ascertain.

These measures would surely help, but they are unlikely to be enough on their own. In the medium to long term, it will be necessary to consider the need for more fundamental reforms to the court, and perhaps even to the appeal system generally. One such measure would be to change the current practice which requires all the court’s judges to decide on whether to grant applications for leave to appeal. This is an example of a practice which may have been effective when the court was operating as a specialist constitutional court with a smaller workload, but is now hindering the court from dealing with new applications expeditiously. This reform would likely require constitutional amendment, but ought to be uncontentious.

Addressing the court’s current challenges provides an opportunity to explore ambitious, but carefully considered and holistic, reforms.

Other medium-term measures could include establishing a screening unit of legally qualified staff to process new applications, thereby removing from the judges the burden of dealing with all applications as they reach the court, and increasing the number of clerks providing support to the judges. While there would naturally be concerns about resource limitations, these measures would be consistent with the practice of apex courts in other jurisdictions and would surely help the court to operate more efficiently.

In the longer term, it is important to take this opportunity to reflect carefully on the appellate system and consider whether more fundamental structural reform is needed. Previous reforms to the court’s jurisdiction and the appellate system have tended to be of a patchwork nature and have resulted in unintended consequences (such as the increase in workload that appears to have followed the expansion of the Constitutional Court’s jurisdiction, with the serious consequences that have followed for the court’s capacity). Addressing the court’s current challenges provides an opportunity to explore ambitious, but carefully considered and holistic, reforms.

Some examples of fundamental, long-term structural reforms discussed in the FUL report include adopting a model similar to the German constitutional court, where the apex court consists of two chambers, one with jurisdiction to deal with constitutional issues, and the other with general jurisdiction. This would invite consideration of another potential reform, which would be to merge the Constitutional Court and the Supreme Court of Appeal into a single apex court.

If the Constitutional Court is retained as a standalone apex court, then the number of judges on the court could be increased, with smaller panels of judges hearing cases, and a smaller quorum (the minimum number of judges required to hear a case). Another option is to curtail the court’s jurisdiction again, through a constitutional amendment.

These potential long-term reforms would be far-reaching and complex. They would require not only constitutional amendment, but also careful attention to be given to the impact on the judicial system overall. The FUL report presents them as options to stimulate discussion, without expressing a firm preference for any particular solutions. But the scale of the challenge currently facing the Constitutional Court requires that ambitious and far-reaching solutions are seriously considered.

Considering the time frame that would be involved in implementing longer-term reforms, particularly those requiring constitutional amendment, it is also important that the process of initiating reforms begins soon. The Constitutional Court cannot afford to be left in limbo, without the causes of its crippling workload being addressed. The FUL report thus represents a call to action for the leadership of the judiciary, the executive and Parliament to begin a serious engagement on how the court’s challenges are to be addressed. DM

Judith February, executive officer, and Chris Oxtoby, research consultant, Freedom Under Law.