Interview with Justice Johan Christiaan Kriegler, Judge of the Appellate Division
5 October 1994
Judge Corbett: Good morning Judge Kriegler. The CV's that we have had in support of the various candidates, have varied from the voluminous to the ultra brief. I think yours falls into the latter category, and I would just like to ask you one or two questions by way of filling in. You took your B.A. in 1954 and then you did your LL.B through the University of South Africa after that, is that correct?
Judge Kriegler: That is correct, yes.
Judge Corbett: Were you doing something at the same time?
Judge Kriegler: I was a judge's clerk.
Judge Corbett: I see. So that was for what, two years or…
Judge Kriegler: No, it was for four years.
Judge Corbett: Four years, I see. And then you commenced practice in 1959. I see your clients were pretty varied, Breyten Breytenbach and Eugene Terreblanche amongst others. I might add Mangosothu Buthelezi and Desmond Tutu. Judge you are now a member of the Appellate Division, and have been on the Appellate Division either in acting capacity or permanent capacity for about four years now, is it?
Judge Kriegler: I think it is three and the last year with the IEC I do not count.
Judge Corbett: Yes.
Judge Kriegler: Doing border duty.
Judge Corbett: You now have made yourself available for selection to the Constitutional Court. Do you feel that you are more suited to the sort of work that will come before the Constitutional Court, do you have a personal preference for that idea, or can you perhaps explain to us your general thinking and attitude in deciding to make yourself available for selection?
Judge Kriegler: Yes, Mr Chairman, I do not think I have a particular bent for the Constitutional Court, nor particular qualifications nor particular preference. I do think that it was proper that this panel have the widest possible body of persons from whom to select and because of the importance of the Constitutional Court particularly at this stage of our national transition, but if you are asking me whether I think I am particularly qualified the answer must be no. I would be as happy to serve on either of the two benches, I know the Appellate Division obviously better than this new and as yet untried body, I think that the challenges will be fascinating, demanding, I would like to be a part of that, I would like to make a contribution there if I could, but a preference of the one over the other I cannot express. Nor a greater qualification other than I know the one job and the other one I will have to learn.
Judge Corbett: May I ask you have you had much opportunity to look at the Interim Constitution, particularly Chapter 3 of the Interim Constitution?
Judge Kriegler: I had a good deal of time last year, I have not looked at it since I have been pretty much engaged in matters electoral and the Constitution in so far as it relates to both electoral matters, franchise provincial border disputes and I have a nodding acquaintance with Chapter 3 and with Sections 98, 99 and so forth, but an expertise I do not claim.
Judge Corbett: And just having perhaps looked fairly cursorily at Chapter 3, may I ask you did you formulate any ideas as to what the main problems will be when the Court comes to interpret an apply the various fundamental rights in chapter 3?
Judge Kriegler: The one issue that I saw at the time when I studied it as being a potential problem, was whether the Bill of Rights is vertical only or horizontal in my terminology, whether it applies only as between State and citizen or whether it applies as between citizens and private bodies and citizens inter se. That was the one that I did not see very, very clearly spelt out and I could see issues arriving and the second was with regard to the limitation clause and the criterion as to what is I cannot remember the terminology at the moment, but acceptable ...(intervenes).
Judge Corbett: Justifiable ...(intervenes).
Judge Kriegler: Justifiable ...(intervenes).
Judge Corbett: In a democratic society based on freedom and .. . (intervenes).
Judge Kriegler: Which seems to me to leave a necessary area of judicial discretion, but also an area of possible contention as to precisely what the ambit is in a given set of circumstances. And which incidentally I think will be the very best reason why the court should be as broadly set up as possible so that it can, to be able to draw on the widest possible pool of knowledge, of course which is more often than not just as good as the bar feeds it, but I still think it would be as well for the bench to be, the Constitutional Court to be broadly based.
Judge Corbett: To what extent as you see it, is it important that appointees to the court have some experience or knowledge of the actual practise of the law in a court?
Judge Kriegler: Chairperson, I belief that it is essential for some of them, but I never thought that it is essential that all of the members of the court should necessarily have that kind of experience, because it will be question of cross-pollination and mutual enrichment on the bench. I do not personally believe that one is disqualified if you do not have that kind of experience. If you do have that kind of experience it can only be to the good, but I do not regard it as essential.
Judge Chaskalson: Judge Kriegler, do you feel that this court has the capacity to influence the direction that the nation takes?
Judge Kriegler: I think it is going to play a crucial role Mr President.
Judge Chaskalson: Without talking about the Constitution itself, could you tell us a little bit about your own vision of this country and as it now stands and in the future?
Judge Kriegler: It is very difficult for me to do that in an intellectual body such as this...(intervenes).
Judge Chaskalson: ...(inaudible).
Judge Kriegler: I do get emotional about the future. I do believe that we have come through very trying but miraculously successful steps in the transition, but that the journey has only just started. I think RDP, just the day to day administration, the interrelationship between Central and Provincial Governments are going to present enormous challenges to the country as a whole, many of which may well end up in the Constitutional Court. I do not think that the Bill of Rights is going to be the crucial issue to be dealt with by the Constitutional Court. I see the interrelationship between power structures in the State as being, certainly in the initial stages as important if not more important and likely to be more difficult. Clearly issues of affirmative action in the broad sense, reverse discrimination, land redistribution, will be issues that will have to be addressed by society at large and will quite possibly in some form or another have to engage the attention of the Constitutional Court. Those to me seem to be the immediate issues in the ensuing couple of years.
Judge Chaskalson: Now in your own life, let us talk about the period before you went onto the bench, did you take an interest in current affairs in any sense? In other words did you confine yourself to your practice or did you have interests or broader concerns outside of your practice, or interests which you pursued?
Judge Kriegler: I think I was as close to the border as could get without doing serious harm to my practice, I think I was involved in community and broader issues more than I should have been, ranging from the ordinary mundane parochial things like parish council and school board and the like to national bodies like Verligte Aksie of which I was the president at one stage, Lawyers for Human Rights of which I was fortunate in joining some others in getting off the ground; Urban Foundation...(intervenes).
Judge Corbett: Legal Resources I think you, Legal Resources Centre…
Judge Kriegler: Legal Resources and Lawyers for Human Rights. Legal Resources Centre I think I was one of the...(intervenes).
Judge Chaskalson: You were a founder trustee.
Judge Kriegler: Founder trustees; I was not in matters political nakedly party political, but I think I was as close to being contentious as one could get.
Judge Chaskalson: It is sometimes said that the task of the Constitutional Court will be political, not in the party political sense, but in the sense that it has to relate to society, to power struggles between different sectors of the government, between the relationship of powers and the balance of powers; do you think from your own background that you have a capacity to address such issues?
Judge Kriegler: I think it is my one claim to being qualified for the bench, for this particular bench.
Judge Chaskalson: I wondered why you had said you were not qualified.
Judge Kriegler: I was never so good on either fact all or…
Judge Trengove: Judge if initial experience is anything to go by, the field of criminal procedure and criminal law was likely to attract a great of vigorous and active constitutional litigation. You had wide experience in criminal matters as an advocate, is that correct?
Judge Kriegler: Yes, not all that wide, I think I have learnt a great deal more since I have been on the bench.
Judge Trengove: Well you have developed a particular interest in criminal procedure on the bench, and you have just published the latest edition of a text book on criminal procedure is that correct?
Judge Kriegler: Yes, that is so.
Judge Trengove: Why did you develop this interest, what about criminal procedure interested you?
Judge Kriegler: I believe that there is a great deal there is a chasm between professing human rights and actual promotion of human rights and I believe the cutting edge for Joe and Joan citizen of the quality of a society is in the criminal courts where the people are at their most exposed and the vast majority of our citizenry are without the benefit of legal representation. And therefore the fibre, the spirit, the philosophy of the criminal procedure system is of the utmost importance, coupled with it of course the penal system. But the first leg of that where the harsh face of society faces the weaker elements is the criminal procedure system and I believe that it needs not so much rewriting as rereading. I think there is a great deal in the Criminal Procedure Act as it stands that can be reconciled very easily with the Bill of Rights provided you put on the right pair of spectacles, and I think that with a bit of vanity I think I have got a pair of spectacles in that regard that I could share with some people.
Judge Bizos: I would like to follow along the line. Judge Kriegler, would you like to express a view about the wisdom of the Appellate Division having been excluded from Constitutional adjudication, and once I have your view, I would like to ask a few questions.
Judge Kriegler: I can only answer that question from two points of view. One as a lawyer and the other as a political animal to some extent. I prefer to do the latter first. I can understand fully the political necessities in going about it the way the interim constitution does.
I understand the perceptions, the historical development and the necessity for arriving at a settlement along those lines. As a lawyer I foresee administrative and jurisdiction difficulties in having as it were two parallel hierarchical systems of going from the trial lowest court to your ultimate court of final decision. My own dream would be that in the foreseeable future these two bodies could merge and that there would be one final court in respect of both the law in general and in respect of constitutional issues. I do not think it is healthy for there to be two.
Judge Bizos: On the assumption that we are stuck with two, what is your view about the Appellate Division being given jurisdiction to adjudicate upon constitutional matters and with its leave it going to a Constitutional Court and particularly in relation to your interest in criminal procedure. We have worked on the assumption I think often that there are questions of fact and there are questions of law. Is it your experience that the two are often so interwoven that it is really difficult to make a just decision without making an amalgam of both?
Judge Kriegler: It is a very rare situation where the point of law is so clear that it renders the facts irrelevant; and I speak frankly in the presence of laymen very often the ostensibly cold point of law is very much influenced by the facts.
Subconsciously or subliminally at least.
I do not think it is necessary to afford the Appellate Division a position in regard to Constitutional issues, I do not think it is necessary, I think with a sensible set of practical rules the two courts can come to a workable arrangement which will avoid unnecessary delays and costs in running through a maze of competing jurisdiction. It would be desirable, however, so that you could have the issue of fact, the issue of law and the issue of constitutionality following one line and then if the present system remains ending with regard to fact and ordinary law in the Appellate Division and the constitutional issue going further.
Judge Bizos: Would you be able to decide whether an alleged confession was freely and voluntarily made or it violated the right to remain silent without having regard to the facts of the particular case?
Judge Kriegler: Theoretically yes, de facto no, not that I necessarily see that as a constitutional issue. I think I see that as a question of law that need not get to the Constitutional Court at all.
Voluntarily is voluntarily.
Judge Corbett: Yes.
Senator Ngcuka: Thank you. Judge there is a view, you may probably disagree with it, that you're Mr Fix-It having given us free and fair elections. Now the first question I would like to ask you is what is the present position, your position as regards the IEC, because my understanding is that there are certain responsibilities which must still be discharged. Are you still attached to it and if not, if so, for how long are you going to be attached to it? Will you be in a position to assume your responsibilities on the Constitutional Court if so appointed? What is the position?
Judge Kriegler: Chairperson through you to the honorable Senator, we have contracted the staff of the IEC down to two dozen at the moment. They are engaged in the mopping up of the innumerable contracts and disputes and claims by and against the IEC; many of those will take, certainly those that go to litigation will take years. It will not require, none of that would require my full-time attendance. I would believe that if I were to be appointed to the Constitutional Court I would have to resolve with the President whether it is consistent with those duties for me to have some kind of supervisory role still in relation to the final mopping up.
However, I believe that the political decision would likely be to appoint a successor in title to the IEC to attend to that mopping up, which would mean that I would be released entirely. And I think that that could well happen within a month from now.
Senator Ngcuka: The second question Judge, like the IEC, the Constitutional Court will have to certify that the new Constitution complies with the constitutional principles. Now one of the issues which is probably going to be central to that, it is going to be the allocation of powers to the, the division of powers between the centre and the provinces.
It is one of the issues which is contained in the constitutional principles. The principles do not state which powers ought to go to which level of government. Do you think that the Constitutional Court should have the power to decide which function should be performed at what level?
Judge Kriegler: Quite frankly that is a political question on which I would prefer not to have to express an opinion, however, now that you force me to do so, if the political roleplayers cannot come to terms on an issue an umpire is required in respect of that issue. I cannot think of a better umpire than a Constitutional Court composed as this one will be with transparent confidence of the people.
Senator Ngcuka: Thank you.
Judge Corbett: Yes.
Adv Gordon: Judge you have, you may have had, that is what I am asking you, the recent experience of perhaps the crisis of conscience. On one hand you as a judge and is regarded by the profession as one of the most intellectually powerful judges on our bench, who applies rules and regulations, on the other hand you were the person who stood between freedom and peace and an apocolypse.
Now during the course of the election there were a number of contraventions of the Electoral Act, I am sure that you probably more than anybody else in this room know how many and what seriousness and as a judge you must have felt well, the rules have been breached and can the results be declared and on the other hand as a hero or Mr Fix-It on the other hand, you were faced with the difficult task of balancing the two things. Did you have a crisis of conscience between being Judge and Chairman of the IEC, and if so, how did you resolve it?
Judge Kriegler: Chairperson, may I say I am not Mr Fix-It. It is number one, and number two if the legal profession indeed thinks as Adv Gordon says that the poorer judges of human material than I think they are, I have and never had any moral problem with any of the decisions taken in the IEC. I think that the legal interpretation I gave to the Electoral Act which I and my fellow lawyers on the commission persuaded the commission as a whole was correct, was the correct legal interpretation. I do not believe that it was ever the intention that the IEC should get involved in interminable factual disputes regarding a particular ballot box in a particular counting station in the remote country districts in 10 days and announce a result. The way I read the law then and the way I still read the law is the Legislature said to us get on with the job. And if it is viable, if it is a reasonable result, if it is a credible result, announce it. And if you are satisfied that it is substantially free and fair, do so. If it is so tainted that you cannot say that, say so, and run a new one. We were satisfied and I personally was satisfied that there was no proven instance of a misdemeanor or an irregularity which either on the national level or in any of the provincial elections, gave serious doubt to the substantial freeness and fairness of the counts as calculated.
Adv Gordon: Thank you Judge.
Judge Kriegler: Thank you for asking the question.
Adv Gordon: Someone was going to.
Judge Corbett: Any, yes?
Senator Mchunu: Judge you say that you were satisfied that there were no serious misdemeanours which could have effected the freedom and voluntariness of the expression of will by our people. My question is in the light of subsequent events are you still of that opinion?
Judge Kriegler: I am more convinced of the correctness since now that we have had time to look at many of the rumours that were flying and we have seen how little they really had to substantiate them, yes.
Senator Mchunu: Thank you.
Judge Kriegler: I may say sir that another telling consideration is the universal acceptance by the body politic as a whole represented by the political parties and the electorate in general of the results of the election.
Mr Ernstzen: Judge Kriegler, earlier you had indicated that you had no particular bent or preference for the Constitutional Court if I heard you correctly, but you felt that this Commission should have as wide a spectrum of choice as possible to come to the nominations to be placed before the cabinet and the State President.
What particular qualities do you think you could bring in to help in the balance amongst the 11 that could be utilised to the benefit of the court itself?
Judge Kriegler: I am put in a cleft stick between honesty and modesty. I really do believe as an independent or maverick if you like, Afrikaner; I have a perspective to bring that will be useful.
Mr Ernstzen: That may help to lead to the next question that a lot has been said about Mr Fix-It, some jocularly, others seriously. 27 April has come and gone and one of the features of the transformation of our society that we are engaging in is precisely what we are doing here over these few days. Having regard to the Constitution and what it lays down to take into account the diversity of the society from which we come, what kind of balance would you think should be struck in meeting that diversity? New paragrapg Judge Kriegler (bold): I do not believe that a court such as the Constitutional Court which is being compiled at the moment, has to have within its ranks a representative of each particular interest group in this kaleidoscope of our country. I do not think we are a representative body in any of the courts anywhere and I do not think that is a court's function. I believe that the court should be so composed that its members are alert to, aware of sensitive to all of those diverse interests. I think it is, you are looking more at the quality of the person that you are nominating than at the selection or the mix of persons that you put together. I think that you can have in one outstanding judicial officer all of the qualities and all of the sensibilities and you could put together a body of 11 that would have none of them.
Mr Ernstzen: I would presume when you are talking of qualities it is not narrowed down to an understanding and interpretation of law in itself only but in its broadest possible context.
Judge Kriegler: Oh on the contrary, I think that the Constitutional Court in terms of the Interim Constitution and the very intention is to play a role distinctly different from that of an interpreter of the law pure and simple. By that I do not mean to say that they will have flights of fancy, because I think that the precedent that we have seen in similar jurisdictions elsewhere means that you can marry very well traditional attitudes towards interpretation of statutes with a broad purposive constructive interpretation of a constitutional Bill of Rights. The very intention was that it should be read broadly and not "letterdienstig", I do not know what the English word is, according to the letter.
Mr Ernstzen: Thank you, because I would not have known what it meant either. Having said that, just one last question Judge Kriegler, for many, many months now you have been subjected to the glare of the television cameras. I would like to hear an opinion from you when so often in the society that we are in now the word transparency, transparency, transparency emerges all the time, and often you look around and it is so non-transparent in what we are involved in, what is your view relative to public interviews of this nature; you would have observed already or heard that the electronic media is excluded from the interviews. Do you think that was a correct decision, or would you favour the contrary?
Judge Kriegler: I hate to sound mealiemouthed and talking out of two mouths again, but as I did with Mr Bizos' question I have to answer this one at two levels, first as a lawyer and secondly as a political animal. I have as a political animal I have no doubt that the utmost degree of transparency and public exposure of this kind of selection process is desirable.
I believe that the Constitutional Court is going to play a broad role and at times a contentious role in society and I believe that it is fitting and proper that the incumbents of the bench of such powers should have been selected manifestly openly so that each and every person in any village in the country will know who those people are and I think it is essential to political stability that there should be that kind of perceived confidence in the bench, which I believe can only come ultimately from transparency. However, as a lawyer and purely personally as a middle-aged white judge, I find it a little embarrassing to have to sing for my supper, I would have preferred it to have been done differently purely personally. But I, as a political animal and I think as a judge I think it is better that everybody see who the people are, and therefore this was the first time, perhaps we took the step a little by little way, it may be that in future public hearings could be televised as well. I would like to make the point that those opposed to public hearings cited a few instances…(inaudible) and Thomas in the United States, what they do not tell you is that there have been thousands and thousands of judicial appointments to the federal bench in the United States over the last two hundred and nearly twenty years, successful ones, and we have had not even a handful of those where the process went awry and I think went awry for political reasons. I think it is a good system.
Mr Ernstzen: Chairperson just a final one, it relates to the singing for the supper question. As a judge and in the honesty in which you have come across now, and having regard to the fact that the Interim Constitution was brought about through compromise between the parties at Kempton Park, how do you feel sitting there when you know five others we reappointed without having gone through the same that you went through?
Judge Kriegler: Envious Mr Chairperson. No, I can understand, it just had to be that way.
Mr Ernstzen: Do you think for the future, whether it be in the next five years or longer, that it should stay like that or should it be changed?
Judge Kriegler: I think the disparity will eventually be perceived to be discriminatory between first degree and second degree incumbents, and therefore should be done away with. It follows from what I said earlier that I would prefer all of them to be exposed to this kind of public enquiry.
Mr Ernstzen: Thank you very much Judge Kriegler.
Judge Corbett: Yes Prof Mureinik?
Prof Mureinik: Judge you have described yourself today several times as a political animal and the court has been described, the Constitutional Court has been described as a political creature. So there is obviously a marriage made in heaven here. I would like to ask you for your views on that notion that the Constitutional Court is in some sense a, a sense which is not true of the other courts, is a political court. It has been said for example that the Constitutional Court will be like a third house of parliament. Do you think that is true, does the Constitutional Court adjudicate politically in a sense which is not true of other courts?
Judge Kriegler: Yes and no. I think that the political role of the courts generally, quite apart from the Constitution and the new Bill of Rights, has been overlooked very often. I believe that no court generally has an apolitical role to play. It is either an instrument of the existing regime and either actively or passively or tacitly it goes along with it. All courts have a political role to play in that sense. The Constitutional Court quite clearly has a broader role to play because in terms of the interim constitution it will have to come to final and nationally binding decisions on issues of political contention. Such as those that I have mentioned earlier, redistribution of land, reversed discrimination in order to rectify inequities of the past and so forth, and those will be policy decisions with political implications. It is in that sense more manifestly a political body than the ordinary courts of the land.
Prof Mureinik: Judge if I could clarify my question.
No one doubts that the impact of the decisions of the court will be political in a large way. My question is whether the Constitutional Court will deal with political considerations in its own decision making processes,...(intervenes).
Judge Kriegler: But quite ...(intervenes).
Prof Mureinik: Its own thought processes to a greater, differently or from the way in which a judge ordinarily deals with political considerations.
Judge Kriegler: Sorry I interrupted. Quite clearly yes, manifestly under - is it Section 34 at the moment, where you have the…
Judge Corbett: The limitation Clause,
Prof Mureinik: 33.
Judge Kriegler: 33. There expressly the court is enjoined to apply a political judgment and in all of those respects, all cases falling within that, it will have to bring to bear a political judgment.
Quite clearly too looking at the precedents elsewhere it would be a very stupid Constitutional Court that was not alert to the political realities. If it were to cut itself off from the political reality, it would not be serving its ultimate purpose. Thus, if it were to overturn a particular statute without seriously considering the implications in society out there of doing so, I think it would be failing in its duty. At the very least it would have to consider whether it should not give a declaratory warning judgment for that particular offending enactment to be amended within a given space of time or that the, I think that the Constitutional Court will manifestly have to work incrementally in bringing about certain societal changes that it perceives to be in terms of the Bill of Rights. It is not a revolutionary body, it is a court.
Prof Mureinik: But does it deal with political considerations as a politician might, or is it striving to develop a principled way of dealing with political considerations?
Judge Kriegler: No, quite clearly it could never do its job if it thinks like a politician and frankly I have not come across a single really qualified judicial officer who has the ability to see round corners like politicians do. I have learnt, and I say this in all humility, I have learnt the extreme limitations of our logical process over the last ten months. We are babes in the wood in some respects and I would never like to double think politicians. The judicial role on this court must be a judicial role alert to political realities.
Prof Mureinik: Just to shift the focus Judge, Senator Ngcuka has drawn attention to the parallel between the role of the IEC in certifying the elections substantially free and fair and the role of the Constitutional Court in certifying the final constitution in compliance with the constitutional principles. You have got I think more experience perhaps than anyone in the nation, perhaps anywhere of the kinds of pressures political and other that might to brought to bear on the decision makers in a process like this. On the face of it there seems to be a tension; the constitutional principles are a rich document, they are themselves a complex Bill of Rights with some very specific values in them, and on the face of it one would have thought it quite difficult for the final Constitution to meet the standard that they set and easy for the court to declare the final Constitution not in compliance as a matter of law. On the other hand as a matter of politics it seems almost, it seems very difficult to envisage a situation in which a final constitution which has achieved the super majorities required in the political process, two thirds in the Constitutional Assembly and two thirds in the Senate on provincial matters, it is difficult to envisage as a matter of real politic the Constitutional Court striking down a Constitution which have achieved that measure of political consensus and perhaps more, perhaps a three quarters majority. How bad in your view will the final Constitution have to be to warrant being struck down and not certified by the Constitutional Court?
Judge Corbett: Is that not a direct question?
Prof Mureinik: It is a matter of approach.
Judge Corbett: All right, I think you do not have to give more than your approach to...(intervenes).
Judge Kriegler: Yes I was feeling uncomfortable as it, I thought if I were unfortunate enough to get an appointment that may well be an issue I will have to deal with.
Adv Bizos: May I just draw attention. It is the second occasion on which Prof Mureinik has put this question without drawing attention to the person sitting there that the situation that we had under the Electoral Act is quite different. There you had the whole process and you had to certify the process as a package deal.
Here in terms of the provisions of 98(9) if anyone feels that any section of the Constitution that is being debated is contrary to the provisions of the schedule of fundamental rights, can approach the speaker to approach the Court in order to express an opinion, the Senate or on a petition of one third of the members of one or other of the houses, so that it is most unlikely I would suggest, Chief Justice, that I am saying this because I do not want to frighten the judge away from this, that he will not have to do it as a package deal but would have to do it in instalments and perhaps it may not be as onerous a task as that that he had to perform under the Electoral Act.
Prof Mureinik: Chief Justice I am sorry, I am not sure that that is entirely accurate. The Constitutional Court will be approached during the course of the drafting process to pass interim opinions only if it is petitioned by a fifth of the Constitutional Assembly. That might or might not happen. I am not prophesizing; whether it has happened or not is irrelevant. At the end of the day Section 71 says that the final Constitution will not come into force and it shall not be of any force and effect unless the Court has certified that all the provisions of such text comply with the Constitutional principles referred to in subsection 1(a). That is something the court may have to, that is the jurisdiction the court will have to exercise, it may have had an opportunity to deal with it piecemeal if the one fifth petitions have arrived before, it may not. But at the end of the day it cannot duck that responsibility. My question is one of general approach ...(intervenes).
Judge Corbett: Can you reformulate your question perhaps?
Prof Mureinik: The question is one, well let us imagine this situation. Imagine that you have not had to deal with these petitions during the course of the drafting because 20% of the members have not been able to agree on a petition in any case.
The final Constitution comes to you for certification under Section 71(2). As a general matter, I am not asking you a specific question, and I cannot be asking you a specific question because there is not a final Constitution yet for consideration in this matter, as a general matter, how bad would you think, what would you think the final Constitution have to be to warrant non- certification What would your general approach be to this matter?
Judge Kriegler: Chairperson, can I answer the hypothetical this way. In deciding whether a provision in the Constitution is or is not bad I would quite clearly pay great attention to the fact that it enjoys the support of a very substantial majority of the representatives of the electorate. I think that one would have to pay a great deal of homage to that pool of knowledge and not arrogate unto oneself superhuman wisdom, but ultimately if notwithstanding a well-nigh unanimous majority of the representatives, I in my own conscience were satisfied that it was bad, it wouldn't have to be very bad, if it is bad I would say so and let the heavens fall.
Prof Mureinik: Thank you.
Judge Corbett: Yes?
Senator Radue: Just one short question. Do you think that there will be room for dissenting judgments in the decisions of the Constitutional Court judge?
Judge Kriegler: I have long envied the richness of the American constitutional development through their Supreme Court where very often the strength of the next majority judgment is based on the previous minority judgment. I would like to see a court which has enough time, which has enough professional backup and enough support from the bar to be able to do that to the extent that the Americans can do it. I think it is a long long day in the far, far future but I hope that we will be able to reach that one day.
