3. Horizontal Application of Fundamental Rights as Resistance Against the Privatisation of the Political
As stated in the introduction above, the notion of the horizontal application of fundamental rights generally concerns the application of fundamental or constitutional rights to the horizontal relationships between private legal subjects. Such horizontal application of fundamental rights, to the extent that a particular legal system actually endorses it, must be said to constitute a new development in constitutional theory. According to the classical liberal understanding of constitutional rights, these rights only apply to the vertical relation between the state and its subjects. They are traditionally understood to prevent the abuse of state power vis à vis the liberty, life and property of the individual. The Constitution of South Africa of 1996 breaks with this traditional or classical understanding of fundamental rights in a revolutionary way. Section 8(2) of the Constitution stipulates the fundamental rights entrenched in the constitution to also bind private legal subjects, if applicable, taking into account the nature of the right and the duty it imposes. This express or direct stipulation of horizontal application is rather unique when one considers the way that horizontal application is dealt with in other jurisdictions of the world. The constitutional jurisprudence of the United States, for example, indirectly acknowledges the horizontal application of constitutional rights through the doctrine of state action. Constitutional rights are recognised to apply to the relationships between private legal subjects to the extent that some element of state involvement plays a role in the violation of a private legal subject’s constitutional right by another private legal subject (Tribe, 1988, pp 1688-1722). The same approach is evident in German Drittwirkung jurisprudence (Van der Walt, 2001b, pp 341-363). It can be argued that theses jurisdictions require a certain verticalisation of the horizontal relationship between private legal subjects before fundamental rights will be acknowledged to apply to such relationships. It should be mentioned that the South African constitutional jurisprudence has thus far also refrained from fully acknowledging the revolutionary articulation of the application provision embodied in section 8(2) of the Constitution. The South African Constitutional Court decided with reference to the 1993 Constitution that the Bill of Rights in principle applies only to the vertical relation between state and citizen. It applies horizontally, they argued, only to the extent that all law and therefore private law too had to concord with and promote the values embodied in the Bill of Rights. (Du Plessis v De Klerk, 1996, at 658) The court has had opportunities to review this position in view of the stipulation in section 8(2) of the 1996 Constitution but have thus far opted not to do so (Fose v Minister of Safety and Security, 1997, at 786).
The term ‘horizontal application of fundamental rights’ has therefore not yet been properly recognised in contemporary jurisprudence. The arguments that follow constitute an endeavour to do so. They endeavour to give proper recognition to horizontal application of fundamental rights as horizontal application, that is, as the applicability of fundamental rights to the horizontal relation between legal subjects. At issue will be an attempt to recognise and explain horizontal application of fundamental rights without taking recourse to notions of verticality. In fact, the recognition of horizontal application of fundamental rights is aimed at showing that the application of fundamental rights as such concerns a political resistance to hierarchy, that is, to any ‘verticalisation’ of the horizontal relationships between legal subjects. The argument is and will be that nothing or no one is exempted from the resistance to hierarchy or verticality that lies at the heart of the notion of fundamental rights. This, we shall see below, also applies to the state. The application of fundamental rights to the relation between state and citizens does therefore not entail the vertical application of fundamental rights, but the prevention of or at least the resistance against any hierarchical verticalisation of the relation between state and citizen. Perhaps we no longer or would not for long need to actually refer to horizontal application in this regard. Constitutional theory never needed to expressly make a point about vertical application before horizontal application came to be an issue in constitutional review. We would therefore no longer need to refer to horizontal application once vertical application has come to be seen as a spurious notion.
As if this inversion of existing constitutional theory is not already enough, the argument will go one step further and contend that all attempts at hierarchy or verticality can be understood in terms of the privatising endeavours of legal subjects to establish hierarchy, that is, to verticalise the horizontality of political relations. The horizontal application of fundamental rights thus concerns the resistance against the privatising, economising and possessive subjectivity of the legal subject. It concerns the resistance against the privatising, economising and possessive distortion of political freedom, that is, of the political freedom that consists fundamentally in horizontal relationships between citizens, the political freedom that consists in a fundamental absence of hierarchy, an absence of hierarchy that can also be expressed with reference to a fundamental equality before the law. The application of fundamental rights, which in terms of this argument is always the horizontal application of fundamental rights, concerns the resistance against privatising verticalisations of the political that destroys the political because the political is essentially a matter of horizontality, of strict equality before the law. As such, the application or horizontal application of fundamental rights necessarily entails a resistance against feudalism and colonialism, feudalism and colonialism being, as we have seen above, essentially a matter of a privatisation of the political that establishes hierarchy.
That horizontal application of fundamental rights entails a resistance against the privatisation of the political is well illustrated by two German Drittwirkung cases. The first case is the well-known Lüth decision of 1958. The second is what has become known as the Blinkfeuer decision of 1961. The understanding of fundamental rights in terms of the resistance against the privatisation of the political can also be illustrated with reference to the public function cases in the United States state action case law. These cases also concerned the constitutional review of private or privatising curtailments of political freedom (freedom of expression), but the severe limitation of their scope of application by later Supreme Court judgments undermines their exemplary force today. (Van der Walt, 2002b, pp 108 -109) Let us therefore turn to the Lüth and Blinkfeuer cases.
The Lüth Decision (Bundesverfassungsgericht 7, 198)
On 20 September 1958, the constitutional plaintiff, the chairman of the Hamburg Press Club called upon cinema owners and film distributors to boycott the film Unsterbliche Geliebte. The film was produced by Veit Harlan, a German filmmaker well known for his production of National Socialist propaganda films. Of these films, Jud Süss was the most notorious. The Domnick Film Production and the Herzog-Film companies, the former as the producer and the latter as the distributor of the film, successfully applied for an interdict in the High Court (Landgericht) of Hamburg that prohibited the defendant from calling film distributors and cinema owners to boycott the film Unsterbliche Geliebte. The court found the boycott to be wrongful (sittenwidrig). Harlan’s absolution from the criminal proceedings against the film Jud Süsss and the fact that the De-Nazification procedures subjected him to no restrictions as far as the practice of his profession was concerned, convinced the court that the boycott call was irreconcilable with the democratic legal and moral convictions of the German people (‘die demokratische Rechts- und Sittenaufffassung des deutschen Volkes’). The wrongfulness did not consist in the expression of a denigrating opinion with regard to Harlan, but in the way it tried to move the public to make it impossible for Harlan to continue his career as a filmmaker.
The Appeal Court (Oberlandgericht) of Hamburg subsequently dismissed the appeal against the High Court’s decision and the constitutional plaintiff therefore approached the Federal Constitutional Court (Bundesverfassungsgericht) with the claim that the decision of the trial court violated his fundamental right to freedom of speech. The Federal Constitutional Court upheld the claim on the ground that the boycott for which the defendant called was motivated by political interests and not by economic interests. The court argued that the call to boycott the film could not be regarded to have been wrongful, as the High Court argued. A boycott is not wrongful as such. Whether it is wrongful or not, must be decided by balancing the interests of the parties involved. The plaintiff did not pursue a private interest with the boycott, but a matter of serious public concern, namely, the image of German culture and the German film industry in the eyes of the world (BVerfG 7, 198, at 216). Private and economic interests must take a back seat when a matter of such fundamental public interest is at stake. This does not mean that such private interests are left without protection in such cases. Persons who believe their private interests to be prejudiced in the course of public debate can themselves join the debate to vindicate their interests. Public opinion, the court argued, depends on this conflict between freely expressed points of view (BVerfG 7, 198, at 219). The plaintiff cannot be said to have resorted to disproportionate measures to pursue the matter at stake. Addressing the meeting of the Press Club of Hamburg and sending an open letter to the press do not exceed the boundaries of the acceptable under the circumstances (BVerfG 7, 198, at 228).
The decision of the Federal Constitutional Court in the Lüth case was clearly concerned with the subordination of economic liberty and economic power to the political freedom that is to find expression in the freedom of expression and free public debate. This same concern, however, would lead to a remarkably different decision in the Blinkfeuer case. Let us take a closer look at the reasons for this different finding.
The Blinkfeuer Decision (Bundesverfassungsgericht 25, 256)
To the end of August 1961, the publishing houses Axel Springer & Sohn, Hammerich & Lesser and Die Welt publishing company sent a letter to newspaper and magazine vendors, urging them not to distribute the weekly newspaper Blinkfeuer. The reason for this boycott was the inclusion of the East Berlin radio and television programmes with the rest of its radio and television information. The publishing houses added that it would seriously reconsider their business relations with those vendors who would not comply with this demand.
The editor of Blinkfeuer filed a claim for compensation of damages in the High Court of Hamburg, arguing that the conduct of the publishing houses constituted wrongful competition, since it was clearly conducting a boycott against Blinkfeuer. The publishing raised the defence that it was simply exercising its right to freedom of expression entrenched in Article 5 of the Federal Constitution (Grundgesetz). The High Court and Court of Appeal granted the claim for compensation, but the Federal Civil Court (Bundesgericht) eventually dismissed the claim, arguing that the publishing houses were not conducting wrongful competition against the claimant, but only sought to promote a political concern. This, the Federal Civil Court argued, was fully warranted by the right to freedom of expression entrenched in Article 5 of the Federal Constitution.
The claimant consequently appealed to the Federal Constitutional Court. The Constitutional Court upheld the appeal. It decided that the conduct of the publishing houses exceeded the boundaries of freedom of expression by resorting to economic pressure to force the newspaper vendors to comply with its wishes. The means by which a boycott in pursuit of a matter of public concern or a political point of view is conducted, must be reconcilable with the norms embodied in the Constitution if it is to fall within the scope of the right to freedom of speech. This conduct could not be squared with an argumentative endeavour to persuade others to freely endorse a particular point of view envisaged by Article 58. In fact, according to the Constitutional Court, the Federal Civil Court failed to see that the publishing houses used economic force, that is, means other than its own freedom of expression, to deprive another of the means to express itself freely. This could not be reconciled with the right to freedom of expression embodied in Article 5 (cf BVerfG 25, 256, at 268-269).
The Difference and Similarity between Lüth and Blinkfeuer
The Lüth and Blinkfeuer cases seem to confront us again and again with Derrida’s insight into the instability of the distinction between the public and the private, the political and the economic. In both cases, an economic boycott was called in pursuit of a political concern. In both cases, the Federal Constitutional Court clearly endeavoured to draw a distinction between the political and the economic and to subordinate the latter to the former. The court decided the cases differently because the politically motivated economic boycott in Lüth was pursued politically whereas the politically motivated boycott in Blinkfeuer was pursued economically. The boycott in Lüth won the favour of the court because the political manner in which the politically motivated economic boycott was conducted could be reconciled with the court’s subordination of the economic to the political. The boycott in Blinkfeuer failed to win the court’s favour because the economic manner in which the politically motivated boycott was conducted, constituted an economic distortion of the political. As such, it was at odds with the primacy the court purported to give to the political (BVerfG 25, 256 at 267). In other words, the judgments in both Lüth and Blinkfeuer constituted a resistance against an economic privatisation of the political. In terms of the concepts elaborated above, both judgments concerned a resistance against feudalisation and colonisation. Both judgements concerned the safeguarding of a fundamental horizontality, a fundamental equality before the law.
But was there ever a political goal that was pursued purely politically? Can an economic boycott really be as purely political as the Lüth decision seems to aver? Why would a political boycott wish to inflict economic impoverishment on the opponent? Is the will to impoverish another not logically and therefore always a will to self-enrichment? Is such impoverishment and enrichment not already at odds with the strict horizontality and equality on which the political turns? Can we ever escape from the circle of enrichment and impoverishment? Can we ever escape from the colonial and the feudal? These are the questions that the Derridean insight into the instability of the distinction between the public and the private persistently prompts us to ask.
We shall return to the nagging question regarding the inevitability of the feudal and the colonial. Let us first return to the point made above that the application of fundamental rights also resists the economic privatisation of the political by the state. The example of the Blinkfeuer case gives us a good vantage point from which we can do so. It shows us that a seemingly political goal can be pursued in an economic, privatising and possessive manner. This is exactly what happens when a politically elected government commences to pursue its political goals in a manner that denies the horizontality of the political. The feudal and the colonial need not begin with the usurpation of political power by a big economic concern such as Daimler-Benz or Daimler-Chrysler. It can also have its source in a government that ‘politically’ abuses the fundamental rights of its citizens or ‘politically’ fails to protect them as adequately as circumstances would seem to allow. Such a government patently governs to the benefit of some at the cost of others. ‘Politically’ must be written between scarecrows in this context, because such a government does not govern politically. It governs economically. Similar to what happened in the Blinkfeuer case, such a government pursues its ‘political’ goals in an economic and privatising fashion. It introduces hierarchy or verticality in the relationship between state and citizen. It is this hierarchy or verticality that the horizontal application of fundamental rights aims to resist when constitutional review of state or government action is at issue. It aims to re-horizontalise. Let us take a closer look at the horizontalising or re-horizontalising effect of constitutional review in the context of the privatisation of the political by government.
4. Horizontal Application and the Horizontalising Call on Government to Justify Action of Public Interest
The argument developed thus far can be abridged as follows: The fundamental rights of citizens are the most fundamental criterion of public interest that we can contemplate. A government that abuses the fundamental rights of its citizens or fails to protect them as well as would reasonably seem possible does therefore not act in public interest. A government that fails to act in public interest acts in the pursuit of a non-public interest. It acts in pursuit of some or other private interest. Like Leopold II, such a government conflates political and economic interests. Such a government constitutes a feudal and colonial power within its own borders9. Such a government no longer governs on behalf of everyone and no one in particular. It governs on behalf and to the benefit of some in particular at the cost of others. It grants feudal privileges. It thus creates a hierarchy that destroys the horizontality of the political. Constitutional review of government conduct in terms of the exigencies of the fundamental rights of citizens aims to restore the horizontality of the political. It aims to restore the equality of government and citizens before the law. How does or how could constitutional review aim to do this? It aims to do so by demanding that government justifies its conduct. The late South African constitutional theorist, Etienne Mureinik, argued almost prophetically that a government’s decision to purchase a nuclear submarine should be subject to the demand to justify the purchase of the submarine when such purchase appears to ignore more pressing demands on the national budget (Mureinik 1992, pp 464 -471). Mureinik’s argument has now come to a head with the court application brought by the Economists Allied for Arms Reduction to have the arms deal scrapped. The application is certainly all about the demand that government justify the arms deal in view of the seemingly much more pressing social demands on the national budget. The government has indicated that they will oppose the application. The basis of their response is not clear yet, but it is bound to turn at least partly on the argument that the decision to purchase arms is a government policy matter, the rationality of which lies beyond the jurisdiction of the court.
In other words, the response to the application is bound to turn on the exigencies of the doctrine of the separation of powers. It is important to note in this regard that the South African Government raised a similar argument in response to the constitutional challenge to their policy on the provision of antiviral drugs in public hospitals to prevent mother to child transmission of AIDS during birth. However, the Pretoria High Court and the Constitutional Court have rejected the argument in both hearings of the case10. The court made clear on both occasions that the substantive review of government policy is accepted in many major jurisdictions of the world to be part and parcel of the judiciary’s power to scrutinise the constitutionality of government or state conduct, notwithstanding the obvious restraint that the doctrine of the separation of powers demands in this regard11.
What is at issue in a government’s refusal to have its policies subjected to a form of constitutional review that not only scrutinises the procedural rationality of state action, but also its substantive justification? At issue appears to be the assumption that the election process gives the party elected to govern a right to govern as they see fit, notwithstanding clarion clear outcries that their governance does not serve the interests of the general public. Is it sufficient to argue that the next election process will sort out the problem (knowing, moreover, that it will probably not) when millions and millions of new AIDS cases can be prevented in the meantime if government would just come to its senses? Is it sufficient to argue that the next election will sort out the problem if billions of rand will by that time have gone down the drain to purchase ‘a small fleet of ships, 30 light helicopters, nine fighter jets and a dozen trainer aircraft’ (Ellis, 2001) while millions of people will have continued to live and die in abject squalor?
At issue in the refusal to subject government policies to the demand for substantial justification is the depriving privatisation of public interest for the term of government for which a party has been elected. For five years such a government’s officials will have benefited economically from holding office in a way that casts a cloud over questions of public interest. Can such a government be said to govern on behalf of everyone and no one in particular? Or are we faced in this regard with feudal lords that govern as if the collective wealth of the people is there for them to use as they please? Let us leave aside the ominous questions as to why they please.
Constitutional review that calls on government to justify its conduct can be understood in terms of the horizontal application of fundamental rights because a government that does not act in public interest acts like a private legal subject. This, we have seen, is still in line with the standard understanding of horizontal application. It still falls short of what is really at issue when constitutional review brings the application of fundamental rights to bear on government or any other legal subject for that matter. Really at issue is the horizontalising effect of the call for justification. At issue is the demand that a government governs like citizens among citizens, on behalf of everyone and no one. At issue is the resistance against the verticality of feudal privileges and hierarchies.
Is horizontality possible? It may not be, as we shall see in the next and last section of this paper. But the resistance against verticality in the name of an impossible horizontality may just be possible. We deal here with the avoidance of the inevitable, the possibility of the impossible, the possibility that the impossible offers us. ‘Mais l’impossible, est-ce que c’est possible?’ asks Jacques Derrida (1999b, 141).