On matters criminal and constitutional, part 2.

What does Smit tell us about a Minister’s powers under legislation?

I have previously argued that the creation of offences by means of regulations is unconstitutional because it amounts to a usurpation, by a Minister, of Parliament’s power to make laws. This argument was treated as somewhat novel by some people I had had conversations with. For them, where Parliament has delegated regulation-making power to a Minister, the content of those regulations does not matter.

I of course disagree. Stripped to its bare essentials, my argument is simply this: (1) only parliament has the power to enact, amend, and repeal statutes; (2) that power is original (or plenary) and cannot be delegated to anyone else; (3) the creation of new criminal offences requires the enactment of a statute that proscribes conduct and provides penalty for that conduct; (4) ergo, only parliament can have the power to create new criminal offences.

In the context of the Disaster Management Act (‘the DMA’), I argued that the creation of the so-called COVID-19 ‘fake news’ offences was unconstitutional because it was done under delegated authority, by the Minister, purporting to be exercising her power to make regulations which (arguably) went beyond the limits of what powers Parliament had delegated to her. Two things to understand here: Parliament could not validly delegate the power to create new criminal offences to the Minister, and, the DMA does not in any event purport to do that.

As luck would have it, the Constitutional Court has recently had occasion to enlighten us further about the nature of Parliament’s plenary power in Smit v Minister of Justice and Correctional Services and Others. That case concerned, among others, the constitutionality of section 63 of the Drugs and Drug Trafficking Act 140 of 1992. That section empowered the Minister of Justice, after consultation with the Minister of Health, to “include any substance or plant in Schedule 1 or 2 of the Act,” or “delete any substance or plant included in that Schedule,” or to “otherwise amend that Schedule”. Smit argued that the section amounted to a delegation of plenary power to the Minister, the court agreed. It held that “plenary power is the power to pass, amend or repeal an Act of Parliament”. I went further to say that Parliament may not “assign plenary legislative power to another body, including the power to amend the statute”. The court held that what the section effectively did, was to give the Minister the power to amend the Schedules, which are a part of the Act, and therefore the Act itself. This is impermissible, we are told. It was unlike the promulgation of subordinate legislation (e.g. regulations) because “there was no binding framework for the exercise of the powers”.

This last point is important. When Parliament legislates, it is limited only by the Bill of Rights and other provisions of the Constitution, both as to the subject matter of legislation and the extent of its interference with our lives. That means that Parliament does not have to operate within “a binding framework” when considering what conduct to criminalise and what punishment to impose for said conduct. Once we are in the realm of frameworks, we are in the realm of regulations, which must flow from a statute which authorises their creation. There is no such source for the criminalisation of any conduct under the DMA (much less the specific conduct criminalised by the regulations).

At the risk of belabouring the point, the DMA only criminalises the contravention of a regulation, but does not envisage the creation of further criminal offences, other than the contravention of a regulation, by means of regulations. Indeed, once one accepts that only Parliament can pass statutes and that conduct can only be made criminal through statutes, the unconstitutionality of the criminal offences created under the DMA regulations becomes abundantly clear.

The blurring of lines between Legislative and Executive authority is dangerous. We should not be comfortable living under rule by decree. This may seem a minor point for some. But it is cause to worry.