Sudan & Euthanasia: Our Constitutional Order is at Risk

16 June 2015

Our Constitutional Order is at risk, with both members of the executive and the judiciary failing to respect the Constitution. Disrespect will breed disrespect. Yesterday the executive defied a court order to assist Sudan President al-Bashir to leave South Africa. Ironically judge Fabricius who ordered President Al-Bashir to stay in South Africa is the same judge who ruled unconstitutionally in the same court to allow euthanasia. Al-Bashir was wanted by the International Criminal Court, an institution to which South Africa is a signatory – and which obliges South Africa to extradite wanted persons. Not only was Fabricius reckless in his one day decision on euthanasia, but he refused to allow suspension of his order pending appeal – thus making his decision unaccountable to anyone else and undermining the credibilty of the judiciary. This confirms our constitutional order is at risk. We have a tension between organs of state.

Should members of the judiciary continue to overstep legitimate constitutional powers, the judiciary will lose the respect of the population and other organs of state – leading to a breakdown of the constitutional order. It is not a question of being for or against the powers of a particular organ of state or a particular leader. Each needs to work within its limited constitutional powers.

Judge Fabricius in his in his Stransham-Ford judgment and court order on euthanasia, very seriously over-stepped his legitimate constitutional powers thus undermining the delicate balance of powers. Actions like this, if not corrected will eventually destabilise democracy. It is thus critical this judgement be overturned not only to defend the Right to Life, but also to preserve the constitutional order. The Supreme Court of Appeal needs to affirm what the New Zealand High Court did – that changing the law on euthanasia is a legislature decision (in fact it should be a decision for the Constitutional Assembly)- regardless of anyone’s opinion for or against euthanasia.

Overturning Judge Fabricius decision on euthanasia is critical not just to the defence 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 earlier this month “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 intepretation 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).

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 constititional 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 with only one in two South Africans trusting the judiciary. Nevertheless, the Fabricius judgment on euthanasia 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, 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.

All South Africans, and particularly those in positions of authority need to stand against any organ of state over-stepping its constitutional powers.

Philip Rosenthal