“The way for modern societies to avoid being absolutely corrupted is to make sure that no one has ‘absolute power’. There are various ways to ensure this: regular free and fair elections, the rule of law, chapter nine institutions, the separation of powers between branches of state, and the limitation of the powers of those branches via the entrenchment of a justiciable bill of rights in a supreme law that is not easily changed.”
Here are some random extracts from the article, for which permission has been given by Business Day, but it is essential to read the entire article by going to Business Day or clicking on the heading above to access the article in Business Day.
End of parliamentary sovereignty
“SA converted its governance model from the parliamentary sovereignty system in use during apartheid to constitutionalism in a multi party democracy under the rule of law. Our new system is held up internationally as an example worthy of emulation.”
“All people now living in SA are protected by the provisions of the justiciable Bill of Rights, which is chapter two of the constitution. The state is obliged to respect, protect, promote and fulfil the rights.
The fact that SA has opted for a justiciable bill of rights has necessitated the establishment of a Constitutional Court. This has been put in place so there is a body to turn to when citizens feel aggrieved by the manner in which the state is going about respecting, protecting, promoting and fulfilling their entrenched human rights.
This court is also given exclusive jurisdiction to adjudicate disputes about whether the president and Parliament have failed to fulfil a constitutional obligation.
More importantly, it has to decide on the constitutionality of amendments to the constitution. Orders of lower courts invalidating laws passed in the provinces or by Parliament, or setting aside conduct of the president, must be confirmed by the Constitutional Court before they have any force.”
Review of powers of Constitutional Court
“President Jacob Zuma has let it be known that he wishes to “review the powers of the Constitutional Court”. Although there has been a fair amount of back-pedalling from the presidential spin doctors, the intention to review the powers of the Constitutional Court is clear and unambiguous.”
75% majority needed to change certain powers
If, as appears more likely, the purpose of the review is to amend or limit the powers of the Constitutional Court, it is necessary to draw attention to the sixth and seventh constitutional principles, which are written in stone in the value system of the new SA and can be changed only by a 75% majority in Parliament, something no political party has the capacity to achieve soon.
These principles are that
• ‘there shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness’, and
• ‘the judiciary shall be appropriately qualified, independent and impartial and shall have the power and jurisdiction to safeguard and enforce the constitution’ and all of the fundamental rights.”
Need for sensible public debate ?
“If Zuma wants a legal order in which he is unfettered and Parliament can make any law it likes, if he wants to take the country back to an order in which human rights have no place, he should, in the words of retired chief justice Arthur Chaskalson, ‘say so, so that a sensible public debate can take place around such issues’.”
“The way for modern societies to avoid being absolutely corrupted is to make sure that no one has ‘absolute power’. There are various ways to ensure this: regular free and fair elections, the rule of law, chapter nine institutions, the separation of powers between branches of state, and the limitation of the powers of those branches via the entrenchment of a justiciable bill of rights in a supreme law that is not easily changed.”
A thought-provoking article by Paul Hoffman, a director of the Institute for Accountability in Southern Africa, appeared for the first time in Business Day today – Time for Zuma to rise to the ‘Chaskalson challenge’.
Here are some random extracts from the article, for which permission has been given by Business Day, but it is essential to read the entire article by going to Business Day or clicking on the heading above to access the article in Business Day.
End of parliamentary sovereignty
“SA converted its governance model from the parliamentary sovereignty system in use during apartheid to constitutionalism in a multi party democracy under the rule of law. Our new system is held up internationally as an example worthy of emulation.”
“All people now living in SA are protected by the provisions of the justiciable Bill of Rights, which is chapter two of the constitution. The state is obliged to respect, protect, promote and fulfil the rights.
The fact that SA has opted for a justiciable bill of rights has necessitated the establishment of a Constitutional Court. This has been put in place so there is a body to turn to when citizens feel aggrieved by the manner in which the state is going about respecting, protecting, promoting and fulfilling their entrenched human rights.
This court is also given exclusive jurisdiction to adjudicate disputes about whether the president and Parliament have failed to fulfil a constitutional obligation.
More importantly, it has to decide on the constitutionality of amendments to the constitution. Orders of lower courts invalidating laws passed in the provinces or by Parliament, or setting aside conduct of the president, must be confirmed by the Constitutional Court before they have any force.”
Review of powers of Constitutional Court
“President Jacob Zuma has let it be known that he wishes to “review the powers of the Constitutional Court”. Although there has been a fair amount of back-pedalling from the presidential spin doctors, the intention to review the powers of the Constitutional Court is clear and unambiguous.”
75% majority needed to change certain powers
If, as appears more likely, the purpose of the review is to amend or limit the powers of the Constitutional Court, it is necessary to draw attention to the sixth and seventh constitutional principles, which are written in stone in the value system of the new SA and can be changed only by a 75% majority in Parliament, something no political party has the capacity to achieve soon.
These principles are that
• ‘there shall be a separation of powers between the legislature, executive and judiciary, with appropriate checks and balances to ensure accountability, responsiveness and openness’, and
• ‘the judiciary shall be appropriately qualified, independent and impartial and shall have the power and jurisdiction to safeguard and enforce the constitution’ and all of the fundamental rights.”
Need for sensible public debate ?
“If Zuma wants a legal order in which he is unfettered and Parliament can make any law it likes, if he wants to take the country back to an order in which human rights have no place, he should, in the words of retired chief justice Arthur Chaskalson, ‘say so, so that a sensible public debate can take place around such issues’.”