OFFICE OF THE CHIEF STATE LAW ADVISER: C BOOYSE
1. On 18 August 2006 the Constitutional Court found that the Choice on
Termination of Pregnancy Amendment Act, 2004 and the Traditional Health Practitioners Act, 2004 had been adopted in a manner that was inconsistent with the Constitution and declared both Acts invalid.
2. The Constitutional Court suspended the declaration of invalidity for eighteen months to enable Parliament to re-enact them in a manner that is consistent with the Constitution.
3. The constitutional complaint arose when the Applicant challenged the constitutionality of both pieces of legislation on the grounds that the National Council of Provinces (the NCOP) and the provincial legislatures had not, during the legislative process, complied with their constitutional obligations to facilitate public involvement in the process as required by sections 72(1)(a) and 118(1)(a) of the Constitution 1.
4. According to the court, the duty must be understood and construed in the light of:
(a) the constitutional role of the NCOP in the legislative process and its relationship with the provincial legislatures;
(b) the right to participation in terms of international and foreign law; and
(c) the nature of our constitutional democracy.
5. The duty to facilitate public participation in the legislative process is an aspect of the right to political participation, which is set out in a number of international and regional human rights instruments. These instruments impose a duty on states to facilitate public participation in the conduct of public affairs. The precise nature and scope of the rig ht is left to states to determine according to their laws and policies.
6. Direct participation can take many forms. The legislature has discretion on how best to achieve this relationship. The public must have a reasonable opportunity to know about the issues and to have an adequate say in them. At its most basic, this means that the public must be given adequate notice of meetings and discussions on legislation to enable members of the public to consider whether or not to make representations to the legislature concerned or to Parliament.
7. What is ultimately important is that the legislature must afford the public the opportunity to participate effectively in the law-making process. There are two aspects to this. The first is to provide meaningful opportunities for public participation. The second is the duty to take measures which ensure that people have the ability to take advantage of the opportunities provided.
8. In determining whether Parliament has complied with its duty to facilitate public participation in any case, the court will have to consider what Parliament has done.
9. The Bills were declared to be inconsistent with the Constitution and invalid because there had not been sufficient public process in the NCOP and the provinces. The defect lies only in the conduct of the NCOP. However the national legislative authority is vested in Parliament in terms of section 44(1). If any Act of Parliament is declared unconstitutional, Parliament must deal with it.
10. Where either the National Assembly or the NCOP has failed in its constitutional obligations in relation to the law making process, this results in Parliament having failed to fulfil its obligations in respect of the resulting statute. The consequence is that the matter must be remitted to Parliament for it to re-enact the law in a manner which is consistent with the Constitution.
11. The Constitutional Court noted that where Parliament has held public hearings, but has not admitted a person to make oral submissions on the ground that it does not consider it necessary to hear oral submissions from that person, the court would be slow to interfere. That person would have to show that it was unreasonable for Parliament not to have done so. The same would apply where the public have been invited to make written submissions.
12. The Office of the Chief State Law Adviser would agree that the reasonableness of Parliaments decision whether or not to hold pubic hearings goes to the heart of the matter. The court had identified factors that must be considered when determining the meaning of public involvement. These include the nature and importance of the legislation, the intensity of its impact on the public, practicalities such as time and expense which relates to the efficiency of the law-making process and what Parliament itself considers to be appropriate public involvement in the light of the legislation's content, importance and urgency.
13. We submit that the Bills introduced by Parliament are identical to the Acts declared unconstitutional by the Constitutional court. The Acts were declared invalid based on the procedure that was followed by Parliament in its law-making process rather than the substance of the Acts.
We would advise that one is in fact unable to determine what constitutes sufficient public participation in this instance. Only a court decides that when a matter is brought to it for a decision. Should the Committee decide to err on the side of caution, we would bring your attention to the fact that for the bills introduced in 2004 extensive public hearings were held where interested parties made oral representations to this Committee and the committee as well as the relevant department considered all written submissions to Parliament.
Parliament has introduced Bills that are identical in substance as the Acts declared unconstitutional by the Constitutional Court. . But for the introducer of the Bills having changed, we submit that one is able to argue that sufficient public involvement had occurred if the Committees-
(a) reconsiders the submissions received in respect of the 2004 Bills,
(b) are prepared to invite persons to address the committee on the issues raised previously should the Committee decide necessary; and
(c) adhere to the constitutional provision that meetings are open to the public.
In an investigation into the reasonableness of such a decision and ultimately such conduct we submit that the nature and importance of the legislation, its impact on the public and certain practicalities have been considered by Parliament to the extent that Parliament is itself satisfied that appropriate public participation has been given effect to.
pp CHIEF STATE LAW ADVISER