Anti-tobacco law 'undemocratic'

The Minister has made it clear that regulations to be gazetted later this week are merely interim measures pending a total prohibition on tobacco. A spokesperson for the Law Review Project (LRP)* asks: “Will liquor follow? And then junk food and ‘dangerous’ activities?”

“Once the principle of freedom of choice is breached, there is no basis for limiting the erosion of liberty,” argues the LRP. “Anti-smokers who are inclined to endorse anti smoking law need to understand that they are condoning something extremely serious, namely the erosion of our constitutional democracy and the erosion of all liberty.”

Government policy on tobacco

The LRP takes no view on either the merits or demerits of smoking nor on what government policy and law should be. It is concerned exclusively with constitutionality and sound jurisprudence in the making of law.

The LRP concurs with the South African parliament, which has instituted a process of critical examination of the extent to which law is being made by the executive instead of the legislature.

An indication of how widespread the problem is, is that in the early post-1994 years, parliament passed around 100 Acts per year. “As more law gets made by the executive and less by the legislature, where law under the rule of law and separation of powers ought to be made, the number has fallen to around 25 annually.”

According to the LRP there are no longer clear criteria according to which laws are legislated or made by decree. “The tendency for the executive to make law by decree, will, if allowed to continue, render parliament superfluous.”

Legislature from the department of health

“One of the most extreme examples of usurping the functions of the legislature is the Department of Health which now freely makes far-reaching laws impacting all South Africans.” The LRP is concerned about the degree to which legislative and judicial functions are being conflated in and usurped by the executive (the DoH in this case) in many contexts, especially health.

“The kinds of far reaching substantive law proposed by the DoH reveal ignorance of or disregard for the separation of powers.”

Jurisprudential concerns regarding the proposed tobacco regulations range from legalistic concerns about Constitutionality, the Rule of Law and other Principles of Good Law, at one end of the spectrum, to practical concerns of interpretation, feasibility and enforceability at the other.

“Apart from well-established philosophical reasons for the separation of power, there is a little understood practical case for it,” said the LRP spokesperson. The entire set up of the legislature reveals its purpose and why it is the appropriate place to make law.

It entails elaborate processes prescribed by the constitution and observed by age-old tradition. These include the early publication of discussion documents and green papers; ample opportunity for inputs by the public and experts, often in workshops and public meetings; presentation to the cabinet for debate; amendment and formal adoption; and scrutiny by parliament.

“The executive, on the other hand, has no public and media galleries like parliament, no directly elected and accountable representatives, and none of the legal and physical institutions appropriate for law making.”

The DoH is planning to implement far reaching measures affecting every South African whether or not they smoke or drink. “Unlike properly legislated measures, they are not confined to protecting anti-smokers. They go way beyond the established concept of third party rights to the invasion of personal lifestyle and risk.

The LRP’s position is that SA needs to adopt a clear understanding of and belief in the rule of law, especially the separation of powers, and that the executive should be charged with implementing not making law.”

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