Submission on 2020 annual review of the Constitution

Despite the fact that the Constitution is often heralded as one of the most liberal in the world, it has been applied and interpreted in profoundly illiberal ways that undermine rather than advance the liberty of South Africans.

In this submission, the Free Market Foundation firstly appeals to Parliament, and government broadly, to appreciate the importance of section 1 of the Constitution, which has been neglected in public policy. Section 1 is the most entrenched provision in the Constitution and contains the values that must inform all law and government conduct: The advancement of human rights and freedoms, non-racialism and non-sexism, the Rule of Law, and constitutional government.

Secondly, the importance of impact assessments in public policy is discussed as a constitutional imperative that government has also neglected. Impact assessments inform the public about the potential unintended and detrimental consequences of new legislation, regulation, and policies, and must be fair and balanced. Without such assessments, public participation is government is undermined.

Thirdly, we briefly elaborate on the nature of constitutionalism that government must also have regard to when going about its businesses, and this is done with particular reference to the Constitution Eighteenth Amendment Bill and threats to nationalise the Reserve Bank. Both these envisioned interventions would undermine the fabric of constitutionalism within which the Constitution rests, and must be abandoned.

Finally, the nature and operation of sections 36 (the general limitations provision) and 37 (the derogation provision) of the Constitution are elaborated with reference to how these provisions ought to (have) operate(d) during the COVID-19 lockdown. We are concerned that government has gone beyond what the Constitution allows it to do during times of public crisis, and encourage a return to constitutional conformity.

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