On matters criminal and constitutional
Can criminal offences be created by regulation?
“The rule of law is an ideal of good government. By calling it an ideal, I am not suggesting it is utopian. I mean only that it is a cluster of principles from which isolated departures may be inevitable even in a decent regime, but substantial and committed compliance with which is one key determinant of a regime’s decency. The most basic principle is this: when we live under the rule of law, the agents of the state are legally and publicly accountable in the courts like everyone else, and the courts are independent enough of the (other) organs of state to make this accountability a significant check on state power. The government of Securitania does not ignore this principle. On the contrary, it uses its de facto control of the legislative assembly to secure the passage of laws that license it to do most of the things it does. Rarely does it actually break the law. But that is because it only rarely needs to break the law. The laws that it steers through the legislative assembly provide it with generous cover for most of the things that it is inclined to do.” — John Gardner, ‘What security is there against arbitrary government?’ London Review of Books, 9 March 2006.
In South Africa today, sharing a link to an article with false information about COVID-19 could land you in prison. This is because in terms of the latest regulations issued by the Minister of Cooperative Governance and Traditional Affairs (Minister) under the Disaster Management Act (DMA), the publishing of any statement (including on social media), with the intention to deceive another about COVID-19 is a criminal offence. This is one of the so-called ‘fake news’ offences created by the regulations and is punishable by imprisonment for no longer than six months, a fine, or both.
While the claims that government’s response measures are motivated by authoritarianism appear to be largely exaggerated, the attempts by the executive to create offences through regulations are, in my view, patently unconstitutional.
The reason for this bold assertion is plain: no Minister, acting under Parliament’s delegated authority in terms of an Act of Parliament, has the power to create new offences. South Africa is founded on the rule of law (section 1(c) of the Constitution) and although the country is in a time of crisis and charting unknown territory, the Constitution is not suspended. The demand for the government to take urgent action to contain the COVID-19 pandemic does not license the executive to ride roughshod over the strictures of the Constitution.
The Constitution reserves legislative authority, that is the power to make laws, for Parliament. This power operates on two levels, at an original (or primary) level and a subordinate (or secondary) level. At the primary level is the enactment of statutes that we have come to know as Acts of Parliament and at a secondary level is the promulgation of proclamations or regulations that flow from those Acts. It is this secondary power that Parliament regularly delegates to the President or his Ministers, to deal with the daily nitty-gritties of running a large administrative state. While the exercise of Parliament’s regulation-making power by Ministers is perfectly legitimate, it is limited only to what a statute allows to be dealt with through regulations and no more.
The principle of legality, understood both in constitutional and criminal law terms, is instructive in this regard. It tells us, one, that all government conduct must be lawful and that no government agent may act beyond the scope of their powers; and, two, that the state may only punish an accused person for conduct designated as a criminal offence by a statute that was in force, valid and applicable at a time prior to the commission of the crime. The creation of offences through regulations does not meet muster on both. This is for two primary reasons.
First, in criminal law, there are two categories of crimes: mala in se crimes, which is conduct that is evil in and of itself (common law crimes such as murder, rape, assault, theft), and mala in prohibita crimes, which is conduct that is evil by reason of its prohibition. The latter category of crimes represents the vast majority of crimes, or what we know as statutory offences. This includes everything from corruption to traffic offences. This means that, in order for a valid offence to be created, a statute that prohibits conduct and prescribes punishment for that conduct would have to be enacted. The second reason is linked to the first, and that is that the power to enact, amend or repeal statutes (ergo, the power to create offences) is an original law-making power that only Parliament can exercise, and cannot delegate to anyone else.
But let’s turn to the Act, for a little. The operative provision under the DMA is section 27(2), which empowers the Minister to make regulations dealing with an exhaustive list of matters set out in 15 paragraphs. One of those 15 paragraphs, s 27(2)(n), provides that the Minister may make regulations concerning “other steps that may be necessary to prevent an escalation of the disaster, or to alleviate, contain and minimize the effects of the disaster”. Perhaps an argument could be made that the wording of s 27(2)(n) is wide enough to encompass the power to create new offences necessary to manage a particular disaster. However, without attempting to examine the merits of criminalisation as a means of curbing the spread of the disease, as others have ably done, I’d like to consider whether this is even possible.
Section 27(4) provides that the regulations made under s 27(2) may include “regulations prescribing penalties for any contravention of the regulations” and s 59(3) says that the Minister may prescribe a penalty of imprisonment for a period not exceeding six months or a fine “for any contravention of, or failure to comply with, a regulation”. Do sections 27(4) and 59(3) taken together establish the Minister’s authority to create new offences by regulation? I think not. Section 27(4) cross-refers to s 27(2) which lists issues that may be dealt with in the regulations and merely tells us that those same regulations may prescribe penalties for their contravention. In contrast, s 59(3) tells us that any contravention of a regulation is an offence punishable by six months’ imprisonment or a fine. What both provisions tell us is that the DMA creates a general offence (contravention of a regulation) and prescribes the maximum penalty for that offence. While the offence created by the DMA imposes a negative duty on citizens (the duty not to contravene the regulations), the offences created by regulation 14 impose criminal liability on positive conduct by citizens, signifying that they are a class of offences different from the one created by the statute.
That is impermissible. The DMA does not give the Minister carte blanche to criminalise conduct she finds objectionable. Even accepting that the wording of s 27(2)(n) is capable of being read as conferring on the Minister the power to create new offences, such a delegation of power would be unlawful. The delegation of original law-making power also raises the question of the constitutionality of the DMA itself, which, if proven to be unconstitutional, would unravel the suite of measures adopted by the government under it. The Democratic Alliance, in its Constitutional Court application to have s 27 of the DMA declared unconstitutional, argues that the breadth and scope of the regulations made pursuant to the section go well beyond what we understand the limits of regulation-making power to be, restricting many a fundamental right — something that Parliament is best disposed to do.
Therefore, in line with current convention in statutory interpretation, the provision should be read in a way that preserves its constitutionality, which means that we are to assume that Parliament delegated to the Minister only those powers that it is able, constitutionally, to delegate and no more.
Besides, criminalisation by way of regulation displaces Parliament’s role of oversight over legislative change. The power of the Minister to amend or repeal regulations is virtually unlimited, and Parliament has little to no role in overseeing changes to delegated legislation except insofar as it can revoke any delegated powers, which can only be done by way of an Act of Parliament.
I assume that the idea to criminalise misinformation about COVID-19 was well-intentioned and aimed at curbing the proliferation of false information about the disease. However, if we have learnt anything over the past month or so, it is that not much is known about this novel corona virus and new information is continuously presented to us. The thought that the simple act of sharing a link on one’s Twitter page could land one in prison is chilling. More chilling is that this would be based on the whims of the executive. As we have seen over the past few weeks, regulations are easily and constantly amended, giving rise to uncertainty about what the law is on one day or the other. That is antithetical to the rule of law which requires laws to be precise, clear and predictable. It might be tempting for the executive, in this moment, to want to arrogate to itself more power than is necessary, but that is at the expense of our democracy. After all, it will still be there when all of this is over.
Postscript: this may come across as a merely technical argument that prioritises form over substance but I can assure you that it is not so. It is fundamentally about how the rule of law ought to be observed even — especially — in times of crisis.
