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Frank I Michelman 59
protections for dignity, freedom, equality, property, privacy,
expression, and for the right to be treated with legality, then make
some or all of those protections unambiguously applicable to all the
conduct and transactions that occur in civil society, ‘private’ as well
as ‘state’, ‘horizontal’ as well as ‘vertical’. And then the nominal
limitation of the court to constitutional matters will not prevent the
constitutional court from seizing control of any matter that it believes
requires its attention.
Let us now return to that other dimension I mentioned of the
‘centralised’/‘decentralised’ review discussion, the question of
reserving to a single appellate tribunal the authority to pronounce at
all on questions of constitutional law, whether or not with finality.
Again, the South African case suggests strongly that the question
cannot be decided intelligently without facing at the same time the
question of how sweeping or how narrow a body of norms are to be
encompassed within the country’s constitutional law. If the choice
approaches South Africa’s in the direction of sweepingness, then
confinement of appellate authority over constitutional matters to a
single tribunal will mean in effect, restriction to one of the number of
appellate tribunals for the entire legal system of the country — a
choice that for many countries will be out of the question. No doubt
most countries will be happy to restrict to one the number of last
resort tribunals for constitutional matters — indeed that comes
naturally to most of us as the option most strongly preferred (else how
will we resolve conflicts and disagreements of legal interpretation
that are bound to arise among multiple courts sitting on the same
level?) — but that is not the same question as the one of restricting to
one the number of competent appellate tribunals for constitutional
matters, which is what the South Africans at first tried to do but later
found impracticable as recounted above. South African constitutional
designers seem now to have settled comfortably on restricting to one
the number of last-resort appellate tribunals for constitutional
matters, but not the number of appellate tribunals having
competence in that field.
The South African experience may further suggest to some
adventurous minds what I am sure would be for most of us a jarring
and unexpected possibility. I have in mind the possibility of
deliberately designing a judicial system so that no single tribunal
figures as the sole available court of last resort for questions of
constitutional law, as those may arise in sundry cases entering the
judicial system at sundry points of entry. Something closely
resembling such a multiple-peaks arrangement was, after all, the
proposal of the Supreme Court of Appeal deciding Container Logistics,