2019-10-03 10: 37
The turn to the kind of rampant populist politics of Boris Johnson has caused the outbreak of lawfare in the world’s oldest parliamentary democracy. These are the implications for South Africa, writes Serjeant at the Bar.
A government decides
to disregard the constitutional framework within which it is to operate
lawfully. The dispute is resolved by a decision of a court which determines
that the government has acted unconstitutionally and sets aside the impugned decision.
The leaders of the government howl about judicial overreach, a coup undertaken
by unelected judges and threaten to ensure that an improved process of judicial
appointment must be instituted.
This sounds very
familiar to South African ears, save that this time the scenario played out in
Boris Johnson’s Britain.
examination of the imbroglio that caused the Supreme Court of the United
Kingdom to set aside the decision to prorogue the British Parliament reveals
the inexorable logic that led the highest court in the United Kingdom to its devastating
conclusion regarding the governance of Mr Johnson’s government.
decision by the eleven most senior judges in the United Kingdom commences with the
court posing the four questions that it was required to answer: 1) Is the
question of whether the Prime Minister’s advice to the Queen was lawful
justiciable in a court of law? (2) If it is, by what standard is its lawfulness
to be judged? (3) By that standard, was it lawful? (4) If it was not, what
remedy should the court grant?
The court was not
only acutely aware of the criticism that would be levelled against it in the
event of an adverse finding against the Johnson government but it said so
expressly: “although the courts cannot decide political questions, the
fact that a legal dispute concerns the conduct of politicians, or arises from a
matter of political controversy, has never been sufficient reason for the
courts to refuse to consider it.”
To the standard argument
that courts should not trench on the terrain of the executive as safeguarded by
the doctrine of separation of powers, the court said “if the issue before
the court is justiciable, deciding it will not offend against the separation of
powers. As we have just indicated, the court will be performing its proper
function under our constitution. Indeed, by ensuring that the Government does
not use the power of prorogation unlawfully with the effect of preventing
Parliament from carrying out its proper functions, the court will be giving
effect to the separation of powers.”
The court, of course,
was operating under an unwritten constitution but that did not prevent it from
setting out a normative framework in terms of which it could make a legal decision
as opposed to a political one. In the judgment two fundamental constitutional
principles are described which are dispositive of the question as to whether
the court could exercise a power of review in this case and what standard to
adopt in determining the lawfulness of the decision to recommend to the Queen that
Parliament be prorogued.
The first is the
principle of parliamentary sovereignty: that laws enacted by the Crown in
Parliament are the supreme form of law in the legal system, with which
everyone, including the government, must comply. However, the effect which the
courts have given to parliamentary sovereignty is not confined to the simple
recognition of legislation enacted by the Crown in Parliament.
As the court noted: “Time
and again, in a series of cases since the 17th century, the courts have
protected Parliamentary sovereignty from threats posed to it by the use of
prerogative powers, and in doing so have demonstrated that prerogative powers
are limited by the principle of Parliamentary sovereignty.”
In turn that leads
to the second principle, namely “that the conduct of government by a Prime
Minister and Cabinet collectively responsible and accountable to Parliament
lies at the heart of Westminster democracy.”
Hence, having established
the legal basis for the case, the only question that remained on the merits of
the review (apart that is from the question of a remedy) was whether there was
a rational justification for the action taken to recommend that the Queen
prorogue Parliament. That depended on the evidence presented, which, as it
turned out, was almost non-existent. Unsurprisingly, the court was constrained
to conclude that “it is impossible for us to conclude, on the evidence
which has been put before us, that there was any reason – let alone a good
reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th
or 12th September until 14th October. We cannot speculate, in the absence of
further evidence, upon what such reasons might have been. It follows that the
decision was unlawful.”
delivered within but a few days of the hearing is a clear exposition of the
powers and boundaries of review of executive action and certainly one that will
prove very useful to the further development of South African law as additional
challenges to executive authority are launched.
There is a second
implication – the turn to the kind of rampant populist politics of Boris
Johnson caused the outbreak of lawfare in the world’s oldest parliamentary
It reveals that
populism whether of the right, being the Johnson/Trump brand or of the
ostensible left as is the case in South Africa, may be curbed temporarily by
the courts but ultimately it will fatally weaken the foundations of constitutional
democracy. It has begun in the United Kingdom.
We think we may have
dodged the bullet but, if it can happen in the UK, it should be obvious that we
are still in the populist firing line.
– Serjeant at the Bar is a senior legal practitioner with a special interest in constitutional law.
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