OFFICE OF THE CHIEF STATE LAW ADVISER: C BOOYSE
OPINION
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.
C Booyse
pp CHIEF STATE LAW ADVISER