Defending Our Constitution: Rejecting Parliamentary supremacy and upholding human rights in South Africa

The following speech was delivered this afternoon by the DA Spokesperson on Justice and Constitutional Development, Adv. Glynnis Breytenbach MP, in response to President Ramaphosa’s Opening of Parliament Address:

Madam Speaker

As a matter of legal history, it is broadly accepted that there were two primary evils of the apartheid legal order: parliamentary supremacy and strict legal positivism.

Parliamentary supremacy in simple terms meant that Parliament could pass laws in an unconstrained manner, and those who applied the law had to give effect to these laws, irrespective of whether they believed it to be right or wrong.

In this regard, former Deputy Chief Justice Dikgang Moseneke pointed out that: “Under apartheid, Parliament enjoyed supremacy and no constitution or bill of rights provided any fetter on its legislative powers. Oppressive laws passed by Parliament could, for the most part, not be challenged by the courts. The apartheid regime was sustained by [a] lack of accountability and the construct of parliamentary sovereignty…. [A]t the time when the South African Parliament enjoyed parliamentary sovereignty, the Appellate Division – and [the] judiciary more generally – was a weak check on Parliament’s powers. Parliament was able to make laws without substantive constraints; it essentially enjoyed a monopoly on power.”

Other academic legal scholars have also analysed the damage caused by the system of parliamentary supremacy and the related tendency for other state organs to simply apply laws.

In this regard one such commentator remarked that it is essential that we should learn to say no to unwarranted parliamentary violations of human rights and advocated for the establishment of a true human rights culture in our country, arguing forcefully that to achieve this the rule of law must be strongly supported.

Speaker, Honourable members: This commentator is none other than Dr John Hlophe, in a learned article in the South African Law Journal of February 1995.

The very same Dr Hlophe who now proclaims that our legal system, the one transformed from an apartheid-enabling system to one founded on the rule of law and human rights, is nothing but a system imposed on us by our former colonisers and is, if not the problem, then at least part of the problem, in our country.

He is now the leader of the MK party in this House. A cursory reading of the election manifesto of the MK party makes it very clear that they are not Constitutionally inclined.

Their goal, clearly stated, is to destroy our Constitution. A Constitution painstakingly drafted, lauded internationally and one that has served us well. MK would replace our Constitutional democracy with a government of Parliamentary supremacy. Now we know from our painful history that it is precisely that structure of government that gave rise to apartheid, the passing of racially discriminatory laws and causing of untold misery to all South Africans.

Yet, upon entering the service of South Africans in this House, all MK MP’s, like all other MP’s, swore an oath to uphold and defend the Constitution.

The Parliamentary Leader of MK also swore an oath to uphold the Constitution when he became a Judge. An oath that he regarded with such frivolity that he has become the first Judge to be impeached in Democratic South Africa, for behaviour so odious, so beyond the pale that he was found guilty of gross misconduct by the Judicial Services Commission.

Now this is the man who is before you all today. A man who swore an oath, repeatedly, to defend and uphold our Constitution, yet he now has a stated intent to destroy our Constitutional democracy. The type of political smoke and mirror game that is to be expected, a true homecoming for someone who has seemingly always seen himself as a politician. A man who cannot be trusted.

Those who drafted our constitution did not contemplate a situation where those found wanting when entrusted with upholding our Constitution, could simply move to another position, where the same obligation is to be sworn to.

However, the drafters in their infinite wisdom gifted us with a safeguard that to break down constitutional supremacy and the rule of law requires the support of 75% of the members of the National Assembly.

They did this because they realised that we needed a definitive break with parliamentary supremacy if our constitutional democracy is to withstand those who attempt to subvert it. This firewall we will work ceaselessly to protect.

Our constitution embodies a “never again” moment: never again will we allow the rule of men to threaten our democracy, our human rights and freedoms. We will work ceaselessly during this seventh administration, from one debate to the next, to expose those who yearn for the system that enabled personal ambitions to trump our law.