Monday, July 4, 2022

Appeal Court puts cabinet ministers’ power on trial

The balance of power between Cabinet and Parliament was on trial Thursday in the case in which government is appealing the High Court judgement that a decision by Minister of Labour and Home Affairs to declare teaching, veterinary and diamond sorting as essential service was null and void and that section 44 of the Trade Dispute Act (TDA) that allows the minister to amend essential service cadres was unconstitutional. Can a cabinet minister unilaterally amend an Act of Parliament?

This was the vexing question that kept lawyers and the Appeals Court bench on the edge of their seats last week as they grappled with the issue of separation of powers. Government lawyer, Morulaganyi Chamme argued that the section of the Trade Dispute Act that allows the minister to amend the schedule of the Act was constitutional. He said parliament was entitled to delegate subordinate legislation. But Justice Isaac Lesetedi was not convinced:

“when an Act of Parliament is amended, it has to go through all the processes as per section 89 of the Constitution, does the minister go over that process when he amends a regulation?” Lesedi was referring to tabling of a bill and the stages that the bill has to go through before it comes into a law. In response, Chamme said the approach taken by the judge will kill the whole idea behind subordinate legislation. Ian Kirby then asked if Parliament has the power to delegate to the minister the power to repeal regulations made by him, to which Chamme said parliament had no power to repeal an Act of Parliament. Chamme said Parliament can delegate widely as long as it supervises the delegation. He said the Statutory Instrument Act seeks to achieve that.

Kirby asked him if parliament has the power to delegate policy issues, Chamme answered in the affirmative emphasizing that as long it was done within the framework of delegation. Chamme argued that the minister’s power to amend a statute was constitutional; he said one has to look at the Act as a whole and consider its objectives. Lord Hamilton interjected saying, the difficulty with the TDA was that it does not define what Essential Services are but only refers to the list in the schedule which contains essential service cadres. Kirby then asked Chamme the possible consequences were the minister to declare the whole public service as essential service.

Chamme said were the minister to do that, he wouldn’t have any qualms as long as it conforms to what is already in the Act or has characteristics similar to the listed essential services. “Can the minister have power to declare any service as essential service? What if he declares carpenters as essential as essential services because they make coffins?” the gallery busted into laughter. Chamme replied by saying the services that the minister add must be compatible to those that are already in the list but not any service in the public service.

“Teachers had a limited right to strike but the 2008 Public Service Act (PSA) allowed them to strike. Can the minister take away that right?” Kirby asked Chamme. Chamme said the PSA defines what essential service is, he said the minister would have to follow the spirit of the Act. Kirby then implored other judges not to ask more questions saying the judges took considerable time asking questions. Continuing with his argument, Chamme said generally laws should be passed within the procedure stipulated in the constitution, he said it was considered universally that there must be delegated legislation. In responding to Chamme’s argument, Advocate Alec Freund representing the unions said any law that permits the minister to amend an Act of Parliament is not permissible.

He said powers to delegate legislation are necessary but he said to give the minister power to add or to subtract in what is in a schedule of an Act of parliament is unconstitutional. He said section 87 of the constitution prescribes procedure of making laws. He said the provision does not only talk of the enactment of acts of parliament but also speaks of amendment of the same. He said the reason why a bill goes through stages is for the transparent process. He said when parliament has taken a view and position; it cannot be changed by the minister.

He said it was unlawful for the minister to amend the schedule of essential service workers by adding more cadres. Kirby announced to both parties that the judgement will not be handed with other judgements next month as there is need for more research in the case.

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