Beyond values – is Namibia moving away from the legal positivism of parliamentary sovereignty?

Abstract

How to make sense of fundamental rights and freedoms in light of constitutional conceptions deriving from political philosophy, namely justice and human dignity? The author addresses the recent judgement of the Namibian Supreme Court Chairperson of the Immigration Selection Board v Frank and Another and asks whether the court's conception of values is compatible with Constitutional Supremacy. Borrowing from Alexy’s Theory of Fundamental Rights, the term value is given another meaning: Values are understood as optimization directives, as principles posited by the constituent assembly, purposively and functionally related to Kant's supreme moral principle; the categorical imperative. Justice is then understood as a feature of society, which is the natural environment of man, it shall signify a society where the individual is taken seriously. Special Fundamental Rights and Freedoms are viewed, as subjective rights emanating from a general freedom right. It is suggested, that the construction of their meanings has to consider that in the negotiation process towards (generic) constitutional provisions for authorizing law citizens live by, truth and justice could only be revealed approximately. The maxim 'in dubio pro libertate', therefore has to be observed when balancing colliding principles - to an extent which is tenable in Light of the social order challenge.