The Constitution is a “package deal” and not something one can “cherry-pick”

2017-01-31 06:12

I’ve been somewhat surprised at recent statements made by one of the country’s high-profile political figures – specifically with regard to him questioning the relevance of SA being a constitutional democracy (versus having a “majoritarianism” form of government) and then subsequently stating his intention to use the provisions of the Constitution to challenge the President should he sign a particular bill into law!

Let me elaborate.

Last week, this person was reported as saying that South Africa should “discuss” abandoning its constitutional democracy (a system of government/laws backed by a constitution) in favour of a “majoritarianism” system of government – apparently, he believes that “majoritarianism” is needed to resolve the socio-economic challenges facing SA!!

“Majoritarianism” is a term with which I was unfamiliar, but after researching it, I now understand it to mean a system of government in which the majority has UNFETTERED power in passing laws etc and is in a position to effectively dictate to the minorities within that country.

Very importantly, under “majoritarianism”, there aren’t any constitutional safeguards for the rights of minorities!

So, having questioned the relevance of SA having a constitutional democracy (above), the very same person then announced his intention to seek to interdict the president, in court, if he signed a certain bill into law BECAUSE the president wouldn’t be fulfilling his duty in applying the Constitution!

Given the above examples of choosing when the Constitution is relevant to one’s cause and when it is not, I believe that our people need to be reminded that our Constitution is a “package deal” – it’s NOT a set of rules/laws that one can “cherry-pick”, whereby one decides to apply the clauses of it that one likes, and ignores the clauses of it that one doesn’t like!

The Constitution is the SA citizens’ last line of defence in the exercise of unreasonable/unethical/discriminatory laws or actions by the country’s leaders/government/corporates/fellow-citizens etc.

Although the Constitution does provide for certain specifics, akin to laws, it essentially lays down a set of guiding principles and ethics that governs everything that is done in SA – we have seen that this has often been of particular relevance in the areas of challenging the promulgation of unfair/discriminatory legislation and also when Government “oversteps the mark” in its administration/application of existing laws!

And just like the person (mentioned above) who has threatened to challenge an action of the president (if the president signed a certain bill into law) on constitutional grounds, so can the ordinary citizen challenge perceived unfairness/injustices against him/her on constitutional grounds.

Without the legalised “oversight” of the Constitution, a “majoritarian” government could potentially promulgate the most unfair laws.

For example, it could legislate that only women (and not men) pay taxes, or that all Xhosa-speaking people, throughout the whole country, must reside in the Eastern Cape.

Under a “majoritarianism” system of government, the popularly-elected majority could therefore conceivably pass such ridiculous and unfair laws – one therefore needs the protection of a good Constitution to prevent such unfair laws being passed.

Of course, “majoritarianism”, may suit those who are currently in the majority group, but that nice “happy feeling” may, one day, end when what was the minority opposition attains a majority ie what will this “new” majority then impose on the “old” majority (which is now the minority)?

One therefore clearly needs the “safety-net” of a good Constitution!

And here’s something that all South Africans need to bear in mind – apartheid would never have been able to exist under a constitution such as the one we have now.

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