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right of protecting and defending the independence and inviolability of Church and State, according to the laws.'
On the other hand, it is argued that the constitution must be deemed to be a Flexible one, because it did not in its original form, and does not now, contain any provision whereby it may be altered, otherwise than by the regular legislature of the country acting according to its ordinary legislative methods.
One cannot suppose that no change was intended ever to be made in the Grondwet. That supposition would be absurd in view of the very minute provisions on some trivial subjects which it contains. No distinction is drawn, by the terms of the instrument, between these minutiae and the provisions of a more general and apparently permanent nature. Ergo, all must be alterable, and alterable by the only legislative authority, that is to say, the Volksraad. This view, moreover, is the view which the legislature has in fact taken, and in which the people have certainly acquiesced. Some changes have been made-such as the admission to the electoral franchise of persons not belonging to the Dutch Reformed Church, the creation of a new supreme court, and the establishment of a Second Volksraad—which are not consistent with the Grondwet, but whose validity has not been contested.
The difficulty which arises from the fact that, whereas the framers of the Grondwet appear to have desired to make parts of their work fundamental and unchangeable, they have nevertheless drawn no distinction be tween those parts and the rest, and have provided no specific security against the heedless change of the weightiest parts, may be explained by noting that they
were not skilled jurists or politicians, alive to the delicacy of the task they had undertaken. They expected that the Volksraad would continue to be of the same mind as they were then, and would respect what they considered fundamental; they relied on the general opinion of the nation. They had, moreover, provided a method whereby the nation should always have an opportunity of expressing its opinion upon legislation, namely, the provision (§ 12) that the people should have a period of three months within which to 'intimate to the Volksraad their views on any proposed law,' it being assumed that the Volksraad would obey any such intimation, although no means is provided for securing that it will do so.
This provision has given rise to a curious question. It excepts those laws which admit of no delay.' Now the Volksraad has in fact neglected the general provision, and, instead of allowing the three months' period, has frequently hastily passed enactments upon which the people have had no opportunity of expressing their opinion. Such enactments, which have in some instances purported to alter parts of the Grondwet itself, are called 'resolutions' (besluite) as opposed to laws; and when objection has been taken to this mode of legislation, these resolutions seem to have been usually justified on the ground of urgency, although in fact many of them, if important, could hardly be called urgent. They have been treated as equally binding with laws passed in accordance with the provisions of the Grondwet (for up to 1895 article 12 seems not to have been formally altered); and it is only recently that their validity has been seriously questioned in the courts.. Those who support their validity argue that in passing such resolutions as laws, the Volksraad must be taken to have implicitly, but decisively, repealed the provision of article 12; or that, if this be not so, still the Volksraad is under article 12 the sole judge of urgency, and can legally treat things as urgent which are, in fact, not so; a view affirmed by the Chief Justice in a case (State v. Hess) which arose in 1895. They add that even apart from both these arguments the unbroken usage of the Volksraad during a number of years, tacitly approved by the people, must be deemed to have established the true construction of the Constitution, especially as according to Roman-Dutch law, usage, whether affirmative or negative, can alter written enactments and could thus annul the directions of article 12. So it is written in the Digest of Justinian (I. 3. 32): ‘Inveterata consuetudo pro lege custoditur nam quid interest suffragio populus voluntatem suam declaret an rebus ipsis et factis ? Quare rectissime etiam illud receptum est ut leges non solum suffragio legis latoris, sed etiam tacito consensu omnium per desuetudinem abrogentur.' To this, how
' , ever, it is answered that the principle of obsolescence by contrary practice cannot fitly be applied where a statute is recent and express. .
Until 1897, the High Court of the Transvaal had held that the resolutions as well as the laws passed by the Volksraad were fully valid, whether or no they had been submitted to the people for the period of three months, nor had the question of their being really urgent been raised. It had thus declared the Grondwet to be alterable by the Legislature, and so not a Rigid
Constitution. In that year, however, in the case of Brown v. Leyds, the Court held, by a majority, that a law which had been passed without having been submitted to the people during the period prescribed by the Grondwet was unconstitutional and therefore void, thus appearing to assert (for the language of the judgement is not very clear) the view that the Grondwet was a Rigid Constitution, not alterable by the Legislature. This action was warmly resented by the Executive and Legislature: and the latter passed a resolution directing the President to require from every judge on pain of dismissal a declaration that he would in future recognize as
а valid every law passed by the Volksraad, and not again assert the so-called 'testing power of inquiring whether a law conformed to the provisions of the Grondwet. The Chief Justice refused to make this declaration, and was accordingly dismissed, much to the regret of those who remembered his past services to the State.
On a review of the whole matter, apart from the political passion which has been brought into it, the true view would appear to be the following, though I state it with the diffidence becoming a stranger who is also imperfectly informed as to the constitutional history of the republic.
The Grondwet of the South African Republic, though possibly intended by its framers to be treated, in respect of its most important provisions, as a fundamental law not to be altered by the Volksraad in the exercise of its ordinary powers, is not really a Rigid constitution but a Flexible one. We have to look not so much at what the framers may have wished as at what the language employed actually conveys and im
ports; and the absence of any provision, such as that contained in the Constitution of the Orange Free State, for a special and peculiar method of change, is decisive upon this point. An American lawyer, accustomed to construe strictly documents which contain or modify powers, might be inclined to argue that the validity of laws (not dealing with matters which 'admit of no delay) which had been passed as mere resolutions, ignoring article 12, may have been doubtful until the Volksraad modified that article by legislation. But the Transvaal High Court had held that the question of urgency was a question for the discretion of the Volksraad; and it must be added that persons accustomed to other legal systems do not necessarily proceed upon American principles. The Swiss, for instance, make their legislature the interpreter of the Constitution for the purpose of determining the extent of legislative power? Allowing for this, and remembering that both the law courts and the whole people had until 1897 treated the Volksraad as an absolutely sovereign body, the action it took in asserting its sovereignty need excite no surprise. It was claiming nothing more than the powers actually enjoyed by the British Parliament. However, although the Volksraad was merely enforcing the rights which it reasonably (and I think correctly) conceived itself to possess, and could not have permitted the majority of the High Court to assert a power previously unknown, a wiser course would have been to amend the Constitution in some way which would have given to the judiciary a more assured position than that which had been secured to them by a confessedly crude and imperfect
i See Essay III, p. 231.