Legislation to move the Scorpions to the police is not to protect members of the ANC from investigations but to enhance government's fight against crime, an advocate for the Justice Department told the Constitutional Court on Wednesday.

"The legislation government proposed was not to protect members of the ANC from investigation, but to enhance the fight against crime," said Tshepo Sibeko, advocate for the Ministers of Justice and Safety and Security.

He said they were acting within the constitutional powers guaranteed to the cabinet by initiating the legislation.

"They could not simply rubber stamp ANC decisions."

He was responding to a submission by a lawyer for the United Democratic Movement that the Cabinet outsourced its decision-making on the Scorpions matter to the ANC.

The court is hearing an application by businessman Hugh Glenister to withdraw the legislation.

Glenister's application is being supported by a number of political parties, including the UDM.

The Pretoria High Court which was initially approached for a decision said it could not rule on a matter regarding the separation of powers between the judiciary and the executive.

UDM lawyer Michael Osbourne argued that although there was no proof of a directive from the ANC to cabinet to initiate the law, the chronology of events inferred that this had happened.

He said Cabinet had accepted the recommendations of the Khampepe Commission that the Scorpions stay in the National Prosecuting Authority, but after the ANC conference of December 2007, there was a sudden about face.

At that conference the party resolved to move the Scorpions to the police, amid much criticism from political parties that this was to protect ANC members from being investigated by the Scorpions.

Osbourne said there was nothing wrong with cabinet implementing decisions of the ruling party, but they should deliberate about them first and not just be a rubber stamp.

He submitted that if cabinet had made any decision on the matter at all, "it was a decision to outsource the decision-making process".

However, Sibeko said that as early as 8 November 2007, government spokesperson Themba Maseko made a statement that cabinet had approved a turn-around of the criminal justice system.

It was not clear what the final details would be but these would be examined at the cabinet lekgotla in January 2008.

"It may not at the time have looked specifically at the Directorate of Special Operations (Scorpions) but actually it was considering these options."

He said that it was common cause that cabinet was made up of ruling party members and that there was a symbiotic relationship between ruling party and government policies.

Judge Kate O'Regan returned to the judges' earlier theme of not wanting to interfere in the legislature process.

"We just cannot say we don't trust Parliament. Until Parliament has spoken, it is not appropriate for this court to speak. It will ill behove this court to show disrespect to Parliament."

The hearing continues.

Sapa