Press release: Substantive law-making should not be left to the executive

Tuesday, 10 July 2012

Substantive law-making should not be left to the Executive
Law Review Project on proposed ban on smoking in public

The Department of Health’s draft regulations on tobacco control may be unconstitutional on the basis that substantive law is being made by executive decree rather than through parliamentary legislation with transparent oversight. This amounts to a direct violation of the constitutional requirement of separation of powers between the executive, legislative and judicial authority.

This is the view of the Law Review Project (LRP), an independent legal policy institute founded to promote the Constitution and Constitutional values, the principles of good law, and removal of excessively restrictive laws.

The LRP submitted jurisprudential objections to the Department of Health’s proposal to ban indoor smoking in all places to which the public may have access, and in many outdoor areas.

One of LRP’s main concerns is that such far-reaching law, significant aspects of which are in conflict with universal principles of good law and the rights of individuals and property owners, is being created by regulatory decree rather than democratic Parliamentary process, says the Project’s spokesperson, Tebogo Sewapa.

Sewapa says it is not appropriate for the Executive to make such regulations as they do not comply with provisions in section 195 of the Constitution, which sets out the requirement for public participation and consultation.

“Substantive laws should be made subject to these and other Constitutional checks and balances necessary for quality of law purposes,” adds Mr Sewapa.

The LRP believes that the new draft regulations no longer reflect a legitimate desire to defend the rights of non-smokers, but a draconian intervention against the rights of smokers, even when alone and harming no other person.

Instead of the draft regulations, Sewapa suggests that the Department rely on the basic principles of good law to protect non-smokers, specifically the common law governing nuisance, property rights, freedom of association and contracts.

Under sound basic principles of good law in a free society consenting adults should be allowed to determine their own conditions of interaction, and property owners have the right to determine conditions for entry, so long as no one violates the legitimate rights of others.

The Project draws attention to the extent to which existing anti-smoking laws already diminish the rights and freedoms of smokers and non-smokers, employers and employees, and property owners, and urges the Department to confine the law to the government’s duty to protect anti-smokers from smokers as absolutely and unambiguously as it protects the rights of smokers to smoke without violating the basic rights of anti-smokers.

“Smoking is a vice, not a crime, just as it is not a criminal offence to be obese, have reckless recreations, or be dishonest without committing fraud. This is the philosophy that should inform the tobacco policy,” adds Sewapa.

In addition to the Department’s decision to make these laws under decree, the LRP has also questioned the competence of whoever drafted the statutory regulations – a highly specialised branch of law – as many provisions are either inappropriate or inappropriately formulated.

This issue, combined with inadequate evaluation of the regulations, has lead to some unintended effects which may serve to make things worse for intended beneficiaries, particularly in middle- and low-income communities where space limitations might increase the exposure of children and domestic workers to second-hand smoke.

The drafter’s confidence is also called into question over some impracticalities such as the difficulty in correctly judging prescribed distances from other people, buildings, windows and doors; scenarios arising where two smokers are alone in an outdoor area that prohibits smoking; and proprietors and employers having to police the activities of smokers in busy environments.

“Our concern is that this proposal steps over the legitimate line of protection into the murky waters of authoritarianism, and does so at the expense of, rather than for the enhanced protection of, anti-smokers,” concludes Sewapa who has urged the Minister not to proceed with the proposed regulations, but rather to refer them back to officials for fundamental reconsideration.


Note to editors:

Copies of the Law Review Project’s submission to the Department of Health are available at:

Prepared by FTI Consulting on behalf of the Law Review Project

Courtney Chennells: / 011 214 2404
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