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Frank I Michelman 57
up appropriately with the spirit, purport, and objects of the
Constitution so far as anyone now is able to see. Of course there can
be not the slightest doubt that final authority for setting those bounds
must remain with the Constitutional Court. That surely is the
ineluctable, irreducible meaning of the supremacy of the
Constitution.
5 Comparative reflections
I conclude with some reflections from the angle of comparative
constitutional design studies. On the map of that academic field as it
currently stands, one fixture is the question — as it sometimes is
framed — of a ‘centralised’ versus ‘decentralised’ form of judicial
organisation for constitutional adjudication. Under that heading, two
questions that are best held distinct sometimes become confused.
One is whether appellate authority to pronounce on points of
constitutional law shall be reserved to a single tribunal. 24 Another is
whether whatever tribunal has authority to pronounce with finality on
constitutional matters shall be confined to such matters, as opposed
to acting as court of last resort on all justiciable matters. South
Africa’s choices to date have been first ‘yes’ but more recently ‘no’
on the first question, and (ostensibly and continuously) ‘yes’ on the
second.
The South African events recounted above shed light on these
questions. One clear lesson is the potential awkwardness (to put it
mildly) of combining a ‘yes’ answer to the first question with a ‘yes’
answer to the second. We see from these events how it may not be
possible (a) to restrict appellate competence on constitutional questions
to a single court without, in effect, (b) making that same court
the country’s sole court of last resort (although not necessarily its sole
appellate court) on all points of law that may arise in the country’s
legal system, whether out of statutes, executive and administrative
orders and regulations, common law, customary law, or whatever.
Whether (a) will be possible without (b) depends, as the South African
events show clearly, on how extensive and inclusive is to be the field
of potential application of constitutional norms. We see that
restriction of constitutional-matter competence to a single appellate
tribunal will be tantamount in practice to making that tribunal
24
Note the focus on appellate jurisdiction. Discussions usually recognise that at
least one court of first instance (and probably more than one in a country with a
regionalised system of first-instance courts) must be granted such authority, along
with at least one appellate court — the reason being that some questions of
constitutional import (the voluntariness of a criminal accused’s alleged
confession, for example) cannot conveniently be decided from scratch at the
appellate level, although of course trial-level determinations of them may be
(and typically are) subject to some degree of appellate scrutiny.