Reck­less amend­ments to con­sti­tu­tion will be il­le­gal


CALLS to chop and change our con­sti­tu­tion amount to lit­tle more than po­lit­i­cal knee-jerks. If those calls are ef­fected, they will be con­trary to the rule of law and there­fore void. South Africans should re­spect the con­sti­tu­tion as an in­flex­i­ble statute meant to en­dure for gen­er­a­tions.

Sec­tion 1, the “found­ing pro­vi­sions”, can, in a way, be de­scribed as the “con­sti­tu­tion of the con­sti­tu­tion”. It pro­vides the ba­sis for the rest of the con­sti­tu­tion and can only be amended with an his­tor­i­cally-elu­sive, two-thirds ma­jor­ity in Par­lia­ment.

Its pro­vi­sions stip­u­late that South Africa is demo­cratic, that our so­ci­ety must be non-racial and non-sex­ist, and the con­sti­tu­tion, as well as the rule of law, is the supreme law of the land. And it is these pro­vi­sions, among oth­ers, that in­form the re­main­der of it.

The Bill of Rights, which comes im­me­di­ately after the found­ing pro­vi­sions in the con­sti­tu­tion, is the most sub­stan­tive brake on gov­ern­ment power and seems to be given more promi­nence by South African civil so­ci­ety. It is un­jus­ti­fi­able for the found­ing pro­vi­sions to con­tinue to be as un­der­em­pha­sised and un­der­ap­pre­ci­ated as they have been up to now.

We have al­lowed strik­ingly ob­vi­ous vi­o­la­tions of our found­ing pro­vi­sions to oc­cur, not only by the ex­ec­u­tive gov­ern­ment, but Par­lia­ment and, on oc­ca­sion, the courts.

The most-of­ten vi­o­lated and most-mis­un­der­stood found­ing pro­vi­sion is the supremacy of the rule of law. We, rightly, ac­knowl­edge the con­sti­tu­tion as the supreme law, yet the con­sti­tu­tion it­self pro­vides that the rule of law is co-equally supreme. The rule of law, fur­ther­more, is a well-un­der­stood prin­ci­ple that dic­tates rea­son­able (and rea­soned) gov­er­nance as well as the pro­tec­tion of hu­man rights.

Each new piece of leg­is­la­tion that as­signs more gen­er­ous dis­cre­tionary pow­ers to reg­u­la­tors, tosses the rule of law fur­ther aside. So over­looked are the found­ing pro­vi­sions that, in re­cent months, there have been some ab­surd and dan­ger­ous calls for changes that fall foul of what the found­ing pro­vi­sions en­vis­age for our so­ci­ety.

Jimmy Manyi of the Pro­gres­sive Pro­fes­sion­als Fo­rum, and Meokgo Matuda of the ANC Women’s League, have called for a re­turn to par­lia­men­tary sovereignt­y, where the whim of Par­lia­ment, not a con­sti­tu­tional in­stru­ment, is the supreme law.

The pub­lic pro­tec­tor has rec­om­mended that the con­sti­tu­tion be amended to re­move the SA Re­serve Bank’s man­date to pro­tect the value of the cur­rency.

And var­i­ous politi­cians and as­so­ci­a­tions have called for sec­tion 25 of the con­sti­tu­tion, the pro­vi­sion that pro­tects the pri­vate prop­erty of all South Africans from ar­bi­trary de­pri­va­tion, to be re­pealed.

All of these calls are reck­less, short-term po­lit­i­cal think­ing de­void of ba­sis in the spirit of our found­ing pro­vi­sions.

Con­sti­tu­tion­al­ism and the rule of law re­quire long-term think­ing, which recog­nises the gov­ern­ment of to­day is not the gov­ern­ment of to­mor­row, and the ou­trage cur­rently dom­i­nat­ing pub­lic opin­ion will not al­ways be around.

Ac­cord­ing to pro­fes­sor of ju­rispru­dence and law at Cam­bridge Univer­sity, Trevor Al­lan, even when the rule of law is not writ­ten into a con­sti­tu­tion, it is still part and par­cel of any com­mon law le­gal or­der and car­ries the same ef­fec­tive weight as if it were writ­ten down. In other words: try as one may, one can­not get around the rule of law.

The late Con­sti­tu­tional Court judge, Tho­lakele Madala, echoed this in the South African con­text, say­ing “the rule of law is a fun­da­men­tal pos­tu­late of our con­sti­tu­tional struc­ture. This is not only ex­plic­itly stated in sec­tion 1 of the con­sti­tu­tion but it per­me­ates the en­tire con­sti­tu­tion.”

He went on to de­scribe some fea­tures of the rule of law, in­clud­ing an aver­sion to ar­bi­trari­ness, equal­ity be­fore the law, and recog­ni­tion of ba­sic hu­man rights.

If the rule of law “per­me­ates” the con­sti­tu­tion, it fol­lows that an ar­bi­trary, un­rea­son­able, and hu­man rights-vi­o­lat­ing amend­ment would fall foul of the rule of law, and, thus, be un­con­sti­tu­tional.

Whether the courts agree with this is a sep­a­rate and un­re­lated ques­tion.

Any con­sti­tu­tion is meant for the ages. The con­sti­tu­tion of the US – a stan­dard-set­ter for con­sti­tu­tion­al­ism – has en­dured for 230 years and been amended only 27 times. South Africa’s con­sti­tu­tion has been amended 17 times in 23 years, with most amend­ments be­ing tech­ni­cal or pro­ce­dural. Sub­stan­tive amend­ments ap­pear to be on the hori­zon, how­ever.

If our con­sti­tu­tion should lose its ba­sic char­ac­ter as a shield for the South African peo­ple against undue gov­ern­ment over­reach within the pe­riod of only one po­lit­i­cal party’s rule, there can be no doubt that tyranny is the rule and free­dom has again slipped through our grasp.

Martin van Staden is le­gal re­searcher at the Free Mar­ket Foun­da­tion and aca­demic pro­grammes di­rec­tor of Stu­dents For Lib­erty in South­ern Africa. The views ex­pressed in the ar­ti­cle are the au­thor’s and are not nec­es­sar­ily shared by the Free Mar­ket Foun­da­tion. www. mar­t­in­

The Con­sti­tu­tional Court sign in our 11 of­fi­cial lan­guages. Chang­ing the con­sti­tu­tion could be dis­as­trous for the coun­try.

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