Letter to the state attorney predicting the destabilisation of the constitutional order

Prioritise the defence of the separation of powers in defence of the Constitutional Order

[The following letter was sent to the State Attorney 8 June 2015 just BEFORE the constitutional crisis relating to the Sudanese President and correctly predicted the destabilisation of the constitutional order resulting from Judge Fabricius euthanasia ruling].

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The current appeal against Judge Fabricius decision is critical not only to the defence of the right to life of weak and vulnerable South Africans, but also to the maintenance of the constitutional order of the separation of powers between the legislature, executive and judiciary. Any encroachment of one sphere of state on the constitutional role of another threatens the stability of the constitutional order.

Judge Collins of the New Zealand High Court wisely ruled “The criminal law declarations sought by Ms Seales invite me to change the effect of the offence provisions of the Crimes Act. The changes to the law sought by Ms Seales can only be made by Parliament. I would be trespassing on the role of Parliament and departing from the constitutional role of Judges in New Zealand if I were to issue the criminal law declarations sought by Ms Seales….Ms Seales’ proceeding does not provide me with a licence to depart from the constitutional role of Judges in New Zealand.”

In our current order, the Constitutional Assembly is meant to make the major decisions on the Bill of Rights, requiring a 75% majority for changes on protected clauses such as these. The legislature is meant to make less major decisions and the judiciary is meant to clarify issues of interpretation of the Bill of Rights. The executive is meant to implement legislation. In the current order, the judiciary is supposed to have least power and correspondingly has the least public accountability. (As demonstrated for example, the extreme difficulty of removing senior judges from office.) Parliament has the most power and correspondingly the most public accountability. In this instance we have a Judge redefining the meaning of an entrenched clauses in the Bill of Rights to the inverse of what was intended at CODESA. If this role of the separation of powers were accepted, we would then be inverting the intentions of the Constitution to give the most power to the arm of state with the least public accountability (the judiciary).

I would argue that Judge Fabricius decision constitutes the most extreme act of judicial activism in South African history and if allowed to become precedent for other judgments would ultimately result in the unravelling of the constitutional order agreed at CODESA. It is attempting to change the law by grossly re-defining the meaning of the words in the Bill of Rights, particularly with respect to the right to dignity and the right to life. If this was to become precedent for the role of Judges in other cases, South Africa would then be left with two choices:
– The first alternative would for the major decisions of law to progressively be defined by an elite of judges without any democratic accountability to the electorate, to the Constitutional Assembly or and without the procedural requirements for public consultation to which parliament is subject. This effectively is what happened to the ancient Greek and Roman democracies and the German Weimar republic, which gave way to control by elites. It is the path that Canada seems to be following. Eventually it would lead to a reaction against such abuse of power by the judiciary.
– The second alternative would be for the public and the other arms of government to lose respect for the judiciary, thus creating a constitutional crisis between organs of state.
Such destabilisation would need to be resolved in some manner, which may be a new constitutional order. If this was to occur, the risk is another ‘out of balance’ scenario for example with the executive or legislature usurping the powers of the courts. This is what occurred in the apartheid state with the ‘High court of parliament act’, which was used to take away the franchise from the so-called ‘coloured people’.

It is thus of utmost importance to try to resolve this judicial error and abuse of power without a scenario of such destabilisation.

Already we have indications of tensions relating to the separation of powers and some instances where I believe mistakes have been made by more than one organ of state. The Human Sciences Research Council reports public confidence in the judiciary at an extreme low. Nevertheless, the Fabricius judgment was reckless to an extent that raises the issue to a new level.

While the Constitution does allow the courts to have regard for foreign case law, I would argue that the Canadian Court was in error both in its material decision and in its interpretation of its own jurisdiction and powers. To impose this error onto South Africa would be effectively to take away the sovereignty of our Constitutional Assembly and legislature and give it to a multi-national judicial elite. Nevertheless, even the Canadian decision is not as extreme as the South African situation as the Canadian Constitution allows for the legislature to defer the effect of a decision of its Supreme Court for a five year period, thus giving opportunity for amendment to their constitution in that period. Ours does not.

I would thus argue the states interest to prioritise legal resources towards preparing a very strong defence on this case, and particularly on the separation of powers between the legislature and judiciary.

Yours sincerely,

Philip Rosenthal