Presentation to the Portfolio Committee on International Re - PowerPoint Presentation

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Presentation to the Portfolio Committee on International Relations and Cooperation: 8 March 2017

The High Court Ruling on the International Criminal Court matter:

Ms A Johaar,

Acting Chief State Law AdviserSlide2

PRESENTATION OUTLINE

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CONTENT

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DA

v Minister of International Relations and Cooperation and Others (Case No 83145/ 2016): Introduction

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Background

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Issues

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The Parties’ Arguments: The Applicant’s Arguments:

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The Respondent’s Arguments

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The Court’s findings: Prior parliamentary approval and repeal of

the Implementation Act: section 231 of the Constitution

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Ex

Post Facto approval

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Public Participation

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PRESENTATION OUTLINE

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CONTENT

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Procedural irrationality

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Should the Court consider

the substantive grounds of challenge?

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Remedy

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Order

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Way

forward

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Questions

and appreciation

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Introduction:In this judgment, the North Gauteng High Court (“the Court”) had to decide, in the main, the question whether the decision by the national executive to withdraw from the Rome Statute of the International Criminal Court (the “Rome Statute”), without prior parliamentary approval, was constitutional and thus valid.

The Court found that this decision was unconstitutional and invalid.

The reasons for this decision are summarily discussed below.

DEMOCRATIC ALLIANCE V MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION AND OTHERS (CASE NO 83145/ 2016}

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On 19 October 2016, the national executive took a decision to withdraw from the Rome Statute. A notice of withdrawal was subsequently signed, by the Minister of International Relations and Cooperation, to give effect to that decision and it was deposited with the Secretary-General of the United Nations. This triggered the process for South Africa’s withdrawal.

In terms of Article 127(1) of the Rome Statute, the withdrawal of a party state from the Rome Statute takes effect 12 months after the depositing of a notice to that effect. Thus, South Africa would cease to be state party to the statute in October 2017.

Identical letters were sent by the Minister of Justice and Correctional Services (“Minister”) to the Speaker of the National Assembly and the Chairperson of the National Council of Provinces on 20 and 21 October 2016, advising them of Cabinet’s decision to withdraw, and the reasons for the withdrawal.

The Minister also informed the National Assembly and the National Council of Provinces, that he intended to table a Bill, repealing the Implementation of the Rome Statute of the International Criminal Court Act, 2002 (Act No 27 of 2002) (the “Implementation Act”).

Background:

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On 24 October 2016, the Applicant launched an application for direct access to the Constitutional Court, seeking to challenge the national executive’s decisions to withdraw from the Rome Statute. It also launched a substantively identical application in the High Court, in the alternative, in the event of the Constitutional Court not granting direct access to it.

On 11 November 2016, the Constitutional Court refused the application for direct access on the basis that it was not in the interest of justice to hear the matter at that stage. As a result, the Applicant fell back on its application in the High Court. It sought orders declaring unconstitutional and invalid-

The notice of withdrawal; and

The underlying Cabinet decision to withdraw from the Rome Statute and to deliver the notice to the Secretary-General of the United Nations, initiating the withdrawal.

Background, continued:

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Consequently, the Applicant, the Democratic Alliance, sought an order that the First Respondent (Minister of International Relations and Cooperation), Second Respondent (Minister of Justice and Correctional Services) and Third Respondent (President of the Republic of South Africa) be directed to-

Revoke the notice of withdrawal; and

Take reasonable steps to terminate the process of withdrawal under article 127(1) of the Rome Statute.

Background, continued:

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The Court identified the following issues:Whether prior parliamentary approval and the repeal of the Implementation Act were required before a notice of withdrawal was given (the “section 231 argument”);

Whether a process of public participation in parliament should have preceded the lodging of the notice of withdrawal;

Whether the withdrawal was procedurally rational;

If parliamentary approval is required for the delivery of the notice of withdrawal, whether such approval may be sought after the notice of withdrawal has been delivered;

Whether, if the process-based grounds succeed, the substantive grounds should nevertheless be considered; If one issue is dispositive of the matter, should other issues be considered?Whether the withdrawal was substantively rational?

ISSUES:

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The Court continued and identified the following additional issues:(g) Whether the State’s obligations in terms of section 7(2) of the Constitution precludes the withdrawal from the Rome Statute altogether;

(h) If the application succeeds on any of the grounds, the just and equitable remedy to be granted; and

(i) costs.

ISSUES, continued:

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The Applicant argued that-(a) Prior Parliamentary approval was required before the notice of withdrawal was delivered to the United Nations;

(b) Prior repeal of the Implementation Act was required before the notice of withdrawal was delivered to the United Nations;

(c) The delivery of the notice of withdrawal without prior consultation with parliament was procedurally irrational; and

(d) The withdrawal from the Rome Statute breaches the State’s obligations in terms of section 7(2) of the Constitution.

The Parties’ Arguments: The Applicant’s Arguments:

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The Respondents advanced the following arguments:Prior parliamentary approval is not required for the notice of withdrawal to be given because section 231 contains no such provision.

In any event, in this case, parliamentary approval is being obtained.

Because there is no express provision in section 231 of the Constitution for a provision relating to the withdrawal, the reading-in is unwarranted. This argument is premised on the following four distinct grounds:

(i) Because it is the national executive’s primary role in international relations to conclude treaties, and not that of Parliament, the legal requirement (i.e. prior approval of Parliament) not being explicit in the Constitution, should not be lightly implied or read-in into the Constitution.

(ii) Since the original function of concluding treaties is not that of Parliament, but of the national executive, parliamentary approval is only required in order for a concluded treaty to become binding.

The Respondent’s Arguments:

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In International Law, a notice of withdrawal from an international agreement, does not require approval.

Parliamentary approval is only required for an international agreement, as contemplated in section 231 of the Constitution – not for a withdrawal.

The Respondent’s Arguments, continued:

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Prior parliamentary approval and repeal of the Implementation Act: section 231 of the Constitution:In dealing with this issue, the Court stated that section 231 of the Constitution must be the point of departure, since the question is whether the national executive is entitled to decide on the withdrawal and execute its decision without the involvement of the legislature and thereafter seek legislative approval, as it seems to do. The Court, relying on the explanation of section 231 by the Constitutional Court in

Glenister II,

held as follows:

“From the exposition of s 231, there is no question that the power to conduct international relations and to conclude treaties has been constitutionally conferred upon the national executive in terms of s 231 (1). But that power is fettered by s 231(2) and (4), which enjoins the national executive to engage parliament. The section therefore clearly delineates the powers between the national executive and parliament.

The Court’s findings:

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The only power the national executive has to bind the country to international agreements without parliamentary involvement is in s 231(3), with which we are not concerned here. Any other international agreement must be approved by parliament in terms of s 231(2) to be bounding on the country. Thus, once parliament approves the agreement, internationally the country becomes bound by that agreement. Domestically, the process is completed by parliament enacting such international agreement as national law in terms of s 231 (4).”

Government Respondents argued, with respect to the effect of section 231, that-

The Court’s findings, continued:

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“[i]n terms of s 231(1) and (2) of the Constitution the national executive first negotiates and signs an international agreement. Parliament thereafter approves the agreement to bind the country. The process of withdrawal should follow the same route with the national executive first taking the decision, followed by parliamentary approval.”

The Court stated that it does not agree with this argument because, if this argument is accepted, it would mean that the act of delivering a notice of withdrawal would be equated to the conclusion and signature during the making of an international treaty which does not require prior parliamentary approval, but can be subsequently ratified.

The Court stated that this cannot be the case because the act of signing a treaty has no direct legal consequences, while, by contrast, the delivery of a notice of withdrawal has concrete legal effects in international law, as it terminates treaty obligations, albeit on a deferred basis in the present case.

Government’s respondents argued, continued:

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Regarding section 231 of the Constitution, the Court summarized its findings as follows: “In sum, since on the structure of s 231, the national executive requires prior parliamentary approval to bind South Africa to an international agreement, there is no cogent reason why the withdrawal from such agreement should be different. The national executive did not have the power to deliver the notice of withdrawal prior parliamentary approval. The inescapable conclusion must therefore be that the notice of withdrawal requires the imprimatur of parliament before it is delivered to the United Nations. Thus, the national executive’s decision to deliver the notice of withdrawal without obtaining prior parliamentary approval violated s 231(2) of the Constitution, and breached the separation of powers doctrine enshrined in that section. “

The Court’s findings, continued:

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Regarding the Government Respondents’ argument, that the national executive has complied with the requirement for parliamentary approval “by virtue of the fact that the request to approve the notice of withdrawal and the repeal of the Implementation Act, are pending before Parliament,”

the Court stated that the Government Respondents are raising the question whether “

retrospective approval by parliament would cure any defects in the process followed for the notice of withdrawal.”

Thus, the question that arises is whether this question has become academic. The Court stated that the question is not academic, for the following reasons: (a) Constitutionally, “the doctrine of separation of powers is implicated”

because “the national executive had purported to exercise power it constitutionally does not have, its conduct is invalid and has no effect in law.”

Ex Post Facto approval:

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(b) Practically, although the notice of withdrawal does not take effect immediately, this does not mean that its delivery has no consequences until the effective date. “The ICC and member states to the Rome Statute must begin preparing for existence without South Africa. Elaborate transitional arrangements must be put in place.”

Public participation:

Regarding the Applicant’s argument that “public participation had been circumvented by the national executive’s delivery of the notice of withdrawal without prior parliamentary approval”, the Court stated that it is not necessary to consider this argument in any detail because of the funding by the Court, that parliamentary approval of the notice of withdrawal and the repeal of the Implementation Act are required before the notice is delivered to the United Nations.

Ex Post Facto approval, continued:

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Thus, the Court found that the notice of withdrawal has been “invalidly delivered, as result of which it has to be revoked [Sic].”

However, the Court emphasized that

“the parliamentary process to repeal the Implementation Act should take its course. None of the parties has suggested that that process (to consider the repeal bill) is tainted.”

Procedural irrationality:The requirement for rationality is that government action must be rationally connected to a legitimate government purpose. The main reason put forward by the national executive for delivering the notice of withdrawal was that the Rome Statute -

Public Participation, continued:

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“[i]mpedes its role in diplomatic and peace-keeping efforts on the continent, as it is required to arrest, on its soil, sitting heads of state

against whom the ICC has issued warrants of arrest. By withdrawing from the Rome Statute, so was the argument, government would be free to pursue its peacemaker role on the continent without the obligation to arrest the indicted heads of state. It would be free to give immunity to such leaders.”

The Court, however, stated that the above argument ignores the effect of the Implementation Act and, as a result, “while internationally the ICC would give effect to the notice of withdrawal, domestically, government would be obliged, among others, to arrest and surrender the indicted leaders, as long as the Implementation Act is in force. It would not be permissible to grant the immunity it envisages.”

However, the Government Respondents argued that “

the notice of withdrawal does not take effect until October 2017, and by that time, the Implementation Act would have been repealed.”

Procedural irrationality, continued:

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The Court stated that the fact that the national executive is “ordering the legislature to finalize its process of considering the repeal bill before the effective date of 18 October 2017”,

is impermissible.

In summary, the Court found as follows regarding the process based challenges:

“We find, on a construction of s 231 of the Constitution, that prior parliamentary approval and the repeal of the Implementation Act are required before the notice of withdrawal from the Rome Statute is delivered by the national executive to the United Nations. Also, that the delivery of the notice of withdrawal was procedurally irrational.”

Procedural irrationality, continued:

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The Court then considered the question whether, in light of the above findings, it was necessary to consider the substantive grounds of review, namely, substantive irrationality and the violation of the state’s obligations under section 7(2) of the Constitution?

The Applicant argued that the notice of withdrawal constitutes a retrogressive measure in international relations, which deprives South Africans of the protection afforded by the ICC, and that it undermines the protection afforded to victims of international crimes in other countries. The Applicant further argued that this is in breach of the state’s obligations under section 7(2) of the Constitution, which imposes obligations to respect, protect, promote and fulfill constitutional rights.

Should the Court have considered the substantive grounds of challenge?

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The Court refrained from expressing any view on the substantive grounds, reasoning that this case must be distinguished from other cases of constitutional challenge because-

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…here, there is a parliamentary process pending to consider the repeal bill. If the national executive follows proper processes, and parliament passes the repeal bill, no fault would be attributable to the national executive. If the complaint be that the legislation repealing the Implementation Act is unconstitutional on any ground, including all the substantive grounds advanced in the application, then such complaint would not be against the executive, but parliament.”

Should the Court have considered the substantive grounds of challenge, continued:

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The Court stated that section 172(1) of the Constitution provides that when deciding a constitutional matter within its power, a court must declare that any law or conduct that is inconsistent with the Constitution is invalid to the extent of its inconsistency. The Court further indicated that the matter can be remedied as follows:

“Given that this court has refrained from expressing a view on the substantive policy decision by the national executive to withdraw from the Rome Statute, it follows that it would be inappropriate to declare that decision unconstitutional as a stand-alone decision. There is nothing patently unconstitutional, at least at this stage, about the national executive’s policy decision to withdraw from the Rome Statute, because it is within its powers and competence to make such a decision.

Remedy:

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What is unconstitutional and invalid, is the implementation of that decision (the delivery of the notice of withdrawal) without prior parliamentary approval. As a result, a declaration of invalidity of the notice of withdrawal, coupled with an order for the withdrawal of such notice, should suffice as an effective, just and equitable remedy.”

Order:

The Court made the following order:

The notice of withdrawal from the Rome Statute of the International Criminal Court, signed by the first respondent, the Minister of International Relations and Cooperation on 19 October 2016, without prior parliamentary approval, is unconstitutional and invalid.

The Cabinet decision to deliver the notice of withdrawal to the United Nations Secretary-General without prior parliamentary approval, is unconstitutional and invalid.

Remedy, continued:

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The first, second and third respondents – the Minister of International Relations and Cooperation, the Minister of Justice and Correctional Services and the President of the Republic of South Africa, are ordered to forthwith revoke the notice of withdrawal referred to above.

The first, second and third respondents are ordered to pay the applicant’s costs, including costs consequent upon employment of two counsel.

There is no costs order as between the intervening Applicant, the first, second, third, sixth, ninth and tenth respondents.

Order, continued:

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Cabinet has noted the ruling by the North Gauteng High Court on South Africa’s decision to withdraw from the International Criminal Court (ICC).

Cabinet abides by the ruling and has established a technical task team to develop a compliance road map.

Cabinet is aware that Parliament is considering an appropriate course of action.

Way forward:

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Questions?Thank you