1.2 Constitutional irregularities

CONSTITUTIONAL IRREGULARITIES
The court order applies to only one person
Does not consider less restrictive means to achieve the same purpose
The court order violates an entrenched clause in the Bill of Rights
A person cannot contract themselves out of a fundamental entrenched constitutional right
Violation of the separation of powers: Judiciary versus the legislature/Constitutional Assembly
Expects the legislature to rubber stamp and work out the details of an elitist decision
Likely violate the mandate and freedom of conscience of the elected representatives
Actual purpose of constitutional review
What the purpose of constitutional review is not
Inappropriate use of foreign case law

CONSTITUTIONAL IRREGULARITIES

The court order applies to only one person
Does not consider less restrictive means to achieve the same purpose
The court order violates an entrenched clause in the Bill of Rights
A person cannot contract themselves out of a fundamental entrenched constitutional right
Violation of the separation of powers: Judiciary versus the legislature/Constitutional Assembly
Expects the legislature to rubber stamp and work out the details of an elitist decision
Likely violate the mandate and freedom of conscience of the elected representatives
Actual purpose of constitutional review
What the purpose of constitutional review is not
Inappropriate use of foreign case law
Constitutional irregularities
The court order applies to only one person
• The court order was written in such a way as to apply to only one person.
• The court order imposes a limitation of the constitutional Right to life.
• The South African Bill of Rights only allows limitations based on a law of general application. Clause 36(1) of the Bill of rights.

“36. (1) The rights in the Bill of Rights may be limited only in terms of law of general
application to the extent that the limitation is reasonable and justifiable in an open
and democratic society based on human dignity, equality and freedom, taking into
account all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose
.
(2) Except as provided in subsection (1) or in any other provision of the Constitution, no
law may limit any right entrenched in the Bill of Rights.”

• While the fact that this court order only applies to one person is less damaging in preventing a ‘free for all’ precedent of euthanasia, it nevertheless is unconstitutional.
Does not consider less restrictive means to achieve the same purpose
• The ruling allows for active euthanasia by a medical practitioner and not only assisted suicide (i.e. prescription of lethal medication).
• This would go against the constitutional requirement of selecting a legal remedy that would be the least restrictive (Clause 36(2) of the Bill of rights) i.e. least conflict with the interests of other parties.
• The applicant did not motivate why he needed active euthanasia by a medical practitioner.

• The judgement did not consider the alternatives for palliative care that are available at home and under existing law to relieve suffering.
• The judgment did not consider the opportunity the applicant has to commit suicide without the assistance of anyone else, thus not impinging the rights and interests of the Health Professions Council of South Africa and the medical profession.

The court order violates an entrenched clause in the Bill of Rights
• The South African Bill of Rights requires a 75% Constitutional Assembly majority to change an entrenched clause in the Bill of Rights. Nevertheless, the judge attempts to do so using judicial activism imposing an interpretation of the Bill of Rights never contemplated by the Constitutional Assembly.
A person cannot contract themselves out of a fundamental entrenched constitutional right
• The court order allows the applicant to request a medical practitioner to contract himself out of his most fundamental human right, the right to life.
• He would presumably need to sign an agreement with a medical practitioner to kill him. Nevertheless, such an agreement would be contractually invalid because it violates his right to life.

Violation of the separation of powers: Judiciary versus the legislature/Constitutional Assembly

Expects the legislature to rubber stamp and work out the details of an elitist decision
• Judge wishes the case to go to Constitutional Court, which he hopes will make an in principle decision and instruct parliament to make a law on euthanasia.
• Nevertheless, this is extreme judicial activism and not the legitimate role of the Constitutional Court.
• The judge expects the legislature to legislate ‘safeguards’ (page 50 of judgement) for his reckless, unwise and unconstitutional judgment. He expects the legislature to accept the judicial decision as a fait accompli and simply work out the details. This is not the role of the legislature. The legislature is not there to be a servant of an elite and unelected group of judges and put a rubber stamp on their judicial fiat decisions.
Likely violate the mandate and freedom of conscience of the elected representatives
• The ruling party in South Africa has not allowed a conscience vote on either abortion or same-sex marriage. Parliamentarian Jennifer Fergusson, who abstained from voting for abortion was immediately removed by disciplinary action by the party. Insiders leaked the ruling party caucus meeting had a majority opposed to same-sex marriage. Nevertheless, parliamentarians were forced to vote in favour of it, or lose their seats. A Parliamentary health committee member who questioned their abortion policy in a committee discussion, was immediately suspended from the committee for several weeks and on his restoration never questioned it again. This makes a farce of the parliamentary and constitutional process.
• The judge expects parliamentarians against their constitutional mandate, electoral mandate and own consciences to enact a law in favour of euthanasia.

Actual purpose of constitutional review
The judiciary has to interpret the Bill of Rights for certain legitimate purposes, for example:
• To correct new legislation is clearly in conflict with the Bill of Rights;
• To adjudicate on interpretation of legislation not clearly spelt out in such legislation, in which it uses the Bill of Rights as a guide.
• To review executive decisions which are challenged as conflicting with fundamental rights.
What the purpose of constitutional review is not
• The purpose judicial review is not for the Judiciary to become an activist body to progressively implement a certain ideological path, by reinterpreting the meaning of certain terms, which it deems ‘Constitutional’ never contemplated by the Constitutional Assembly.
• There is a school of thought in the legal profession which supports such an activist approach, both in foreign courts and in South Africa. These judges represent a danger to constitutional democracy and should be removed from the judiciary.
• Judge Fabricius has demonstrated he is one of them.

Inappropriate use of foreign case law
• The judge cites the Canadian Supreme Court February 2015 decision on euthanasia. Nevertheless, he fails to consider the differences between South African society and that of Canada. These include:
– An overwhelming majority of South Africans believe in the Sanctity of Human Life, which includes opposing euthanasia.
– Canada is a stable society with police in control, while South Africa is an unstable society with thinly stretched law enforcement without capacity to police doctors licensed to kill. It is evident they are not regulating illegal abortions, which was promised at the time of legalisation of abortion on demand. In his judgment, the judge cites the Canadian decision to mitigate impacts on vulnerable through regulation (page 38).
– South Africa unlike any other country in the world has millions of people terminally ill with HIV/AIDS and thus the potential for a much wider implementation of the law than any other country on earth.