Who's afraid of first principles?

When the first lockdown regulations under the Disaster Management Act were gazetted, I was surprised that, in the flurry of commentary that followed, no one was particularly bothered by the fact that the Minister of Co-operative Governance had, overnight, created new criminal offences. I wrote about this initially, pointing out that in my view, no minister acting under delegated legislative authority had the power to create new criminal offences.

In hindsight, my first attempt at expressing my concerns was perhaps clumsily made. I tried to cover much more ground than I needed to, instead of focusing on one central issue. In any event, as I pointed out in a subsequent piece, all the responses to my concerns begged the question. The most common response was that since the minister was empowered in terms of the DMA to make regulations, she had the lawful authority to, in the regulations, create offences. This argument, I explained, proceeds from a mistaken premise, which is that Parliament is able, in the first instance, to give a minister such a power.

It seems at least one judge shares my concerns. In Democratic Alliance v Minister of Co-operative Government and Traditional Affairs and Others, the high court in Pretoria dismissed a challenge by the Democratic Alliance in a majority judgment of 2-1. The dissenting judgment by Matojane J is important and articulates some fundamental problems not only with section 27, which gives the minister regulation-making powers, but also with the delegation of legislative power by Parliament generally.

The learned judge points out that the section gives the minister wide-ranging power to “legislate, interpret and execute [secondary] legislation that has wide-ranging limitations on the fundamental rights of all citizens without requiring that such legislation be first tabled in Parliament and approved by Parliament”. He further states that there was no reasonable explanation why, despite several interactions between Parliament and the Executive after the national state of disaster was declared, no prior parliamentary approval or advice was sought by the minister before drafting or issuing the regulations, and that, because the DMA does not require parliamentary oversight (and undoubtedly because of Parliament’s own dereliction of duty), the regulation-making delegation constituted a “comprehensive divesting of legislative power” by Parliament to the Executive.

There are several strands of argument worth pursuing here. The first is the lack of parliamentary oversight attributed to the absence of an oversight regime in the DMA. To state the obvious, Parliament gets its oversight powers from the Constitution. Not legislation. It could, at any point, have required the minister to table any proposed regulations before it for its consideration. The fact that the DMA does not provide for it is of no moment; Parliament cannot legislate itself out of its constitutional powers.

Second, an important point is made that the regulations were made by the same body that would be charged with implementing them. The Constitution, you’ll recall, vests the legislative authority in Parliament while the Executive is charged with “implementing national legislation”. The courts have consistently held that regulation-making amounts to the implementation of national legislation. It is a secondary power, which functions within a framework established through the exercise of a primary power (the Act). Hence, Matojane J was concerned that there were no clear limits on what could or could not be done through the regulations. Put differently, the DMA gives the minister plenary power.

Parliament’s plenary power is to make laws: to enact, amend, or repeal Acts. This power is limited only by the Constitution and the Bill of Rights. To delegate to the minister the power to make regulations, for example, concerning any “other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimise the effects of the disaster” is to effectively give the minister the power to decide — without limitation — what is “necessary” in any given instance: to legislate where Parliament has never legislated before.

Well, what’s all this got to do with criminal offences? My focus on the power to create criminal offences was deliberate. It raises two important questions: what conduct should be punishable through the criminal law (what conduct can you be imprisoned and acquire a criminal record for?), and who gets to decide that? Any answer which postulates that the Executive could in any situation ever have the power both to decide what conduct is criminal and to enforce the prohibition of that conduct would undermine a very rudimentary constitutional precept — that the powers to create, enforce, and interpret laws cannot reside in the same body. Our fundamental rights would be endangered by the ability of a minister to create offences, not out of any rational or popular policy reason, but simply the desire to have the power to enforce the prohibition of any conduct that in their subjective view should be criminalised.

This is an argument from first principles. It locates the answer to the question “can the minister create criminal offences through regulations?” not in asking whether an Act empowers the minister to make regulations but in asking whether the content of those regulations may have the same effect that a newly passed Act of Parliament would have: to change the legal landscape completely and to punish any noncompliance.

This kind of argument is uncomfortable for many lawyers who prefer not to ask what the nature of plenary power is and what its uses are but who would rather assume that any power that is delegated by Parliament to a minister is by its nature secondary or non-plenary.

Finally, an obiter remark by Matojane J presents an interesting theoretical challenge to how legislative power is to be understood. He says: “Parliament does not possess the legislative power as original power. The authority of Parliament to make laws is contained in section 43 of the Constitution, which vests the national legislative authority in Parliament, an elected and deliberative body.” What the learned judge means by this is that, unlike in a parliamentary system, under our Constitution Parliament does not have the power to make laws simply by virtue of being Parliament but because the Constitution vests that power in Parliament.

This is important because in a system of parliamentary sovereignty, there is no limit on how much legislative power a legislature can delegate to another body. But implicit in a constitutional democracy is that the legislature is delegated the power to make laws by the Constitution is that it may not further sub-delegate that power as if it were original and unlimited.

I hope that this piece clarifies my position on the creation of criminal offences and why it is necessarily a plenary legislative power which may not be delegated or exercised by a minister. I am also hoping that our constitutional law discourse might start embracing first principles reasoning, and not relying solely on authority if not for expanding the parameters of debate, then for the simple reason that courts oftentimes get it wrong.