Report of
the Constitutional Review Committee on a study tour to the
1.
Introduction
The Constitutional Review Committee
(CRC), had observed that it has not been aggressive in exploring, interrogating
and exercising its functions during the first 12 years of South Africa’s
constitutional implementation, as Parliament was busy adopting the necessary
pieces of legislation, most of which were about major and complex reforms. However, the CRC, in determining its role in
this Fourth Parliament, has considered the legacy of its work during the first
three Parliaments, as well as the mandate it has received from the Constitution
in terms of which it is to review the Constitution annually. In addition, since the new Parliament elected
in 2009 has styled itself as an “activist”
parliament, the CRC had in its 2009-2014 Strategic Plan located its
mandate within the context of an “activist “ Parliament that is driven by the
ideals of exercising its constitutional powers in a manner that is effective
and efficient. It is within this context that it sought to reposition its role
so that it could be more effective.
In realising its effort to bring its
capacity on par with its critical task, the Committee identified various
opportunities to enhance its knowledge and understanding by seeking assistance
from institutions such as the Venice Commission (the Commission), which is
perceived as the world’s think-tank and depository of knowledge, expertise and
practical skills relating to constitutional matters. The Commission is a consultative body which
co-operates with member states of the Council of Europe and with other
non-member states. It is composed of
independent experts in the field of law and political science. The members are senior academics, particularly
in the fields of constitutional or international law, supreme or constitutional
court judges or members of national parliaments. The Commission has 57 full member states
which are all Council of Europe member states, one associate member state -
·
To provide constitutional assistance, which takes form of
opinions to states or other international organisations of bodies that have
approached it for opinions in relation to draft constitutions or constitutional
amendments.
·
Identifying and developing standards in the area of
elections through, amongst other things, codes of good practice on elections,
referendums and on political parties.
·
To provide amicus
curiae briefs on comparative constitutional and international law issues.
·
To give opinions on constitutional aspects of legislation
relating to courts.
* To co-operate with
ombudspersons through opinions on legislation that governs their work.
The Commission extended an
invitation to the CRC to send a five-member delegation to its two-day plenary
session, which was held at the Scuola Grande Dis Giovanni Evangelista in
2.
Terms of Reference
The Committee sought:
·
to reposition the workings of the CRC in order to look
beyond the mandatory process of the public submissions process and to learn
from international best practices in that regard;
·
to develop a protocol of action and methodology of work that
would assist in determining whether the Constitution required amendments and or
modifications;
·
to check the different procedures which other member states
follow when amending their constitutions; and
·
to establish whether there were African countries which were
members of the Venice Commission.
.
The issues dealt with during the
engagement with the Commission related to the constitutional function and the
mandate of the “activist” parliament.
Some areas of focus included the status of the implementation of second
generation and socio- and economic rights, which should drive the
transformation of the society; the accommodation of the institutions of
traditional leadership within the democratic framework; and the performance of
the system of provincial and local governments.
The CRC has also considered bringing within its fold the ongoing debate
on whether or not the judicial system should have an apex court or whether
there should be a twin peak system headed by courts with distinct areas of
jurisdiction, as at the present time.
The CRC also alluded to the continued debate as to whether the property
clause in the Constitution does not hamper land reform so as to address the
legacy of colonialism and apartheid.
The issues discussed with the Commission were on two
phases: Firstly, the CRC needs to interpret the Constitution to determine what
it requires of it, as the South African courts could not be called to interpret
the relevant constitutional provisions as they do not provide advisory
opinions. Furthermore, there is at present
no case or controversy with which a court can be seized. Therefore, the Venice Commission would be uniquely
qualified and positioned to assist in this regard. Secondly, the CRC is of the view that if a
“review” of the Constitution involves, not only assessing whether or not the Constitution
requires amendment, but also its “health”- including the state of its
implementation and its impact in society in respect of transformation - there
would be a need to develop a new methodology for such purpose. This methodology would have an enormous
importance way beyond
3.
Findings
The CRC feels that its mandate of reviewing the
Constitution annually must take cognisance of the fact that its object is a
document with which there is general satisfaction both domestically and
internationally. Therefore, the CRC is
of the opinion that the review should only suggest amendments when necessary to
improve such a document. In addition,
the review should also consider dispassionately the status of the
implementation of
South Africa
still enjoys a “special status” within the Venice Commission, originally due to
it not qualifying for membership or observer status before the advent of
democracy in 1994.This is an anomaly, as the Commission played a significant
role, not only in the constitutional negotiations leading from apartheid to democracy, but also in
assisting the Constitutional Assembly in formulating the final Constitutional
of 1996. The Commission further played a
vital role in assisting the consolidation of
The Commission had taken a decision in principle not
to extend its membership beyond its current number. Furthermore, the “observer status” was no
longer available, but the Commission would gladly make an exception for
The CRC is of the opinion that the inputs of, and the
co-operation with, the Commission will enable the CRC to provide a much greater
contribution to the consolidation of South Africa’s constitutional democracy
and act as a political mechanism to the early detection of any constitutional
shortcomings or threats to the fledging democracy.
The CRC
received a briefing from Dr Sooklal, the South African Ambassador to the European
Union (EU). This entailed a brief background on the European Parliament (EP), the
EU Parliamentary Committee on Constitutional Affairs and its responsibilities, and
the Delegation for Relations with
In addition,
the CRC met with Mr O’Boyle, the Registrar of the European Court of Human
Rights. He addressed the Committee on the
European Convention on Human Rights and its importance in the protection of human
rights and fundamental freedoms in
The CRC also
met with Mr Michael Cashman, the Chair
of the Delegation, in the Office of Delegation for Relations with
Furthermore,
the CRC had an exchange of views with the Chairperson and members of the EU
Parliamentary Committee on Constitutional Affairs. The briefing was around the composition,
functions and powers of the Committee.
(4) Conclusion
The study tour was an overall
success and was a beneficial exercise in that it not only met the Committee’s
expectations with regard to its mandate and core objectives, but was also an
opportunity to study international best practices. The constructive engagement
with the Venice Commission and the opportunities for further engagements
provide fertile ground for effective and efficient constitutional reform. The
Committee is now in a better position to consolidate on the work it has already
started in grappling with its mandate, and to chart a way forward in outlining
the path it seeks to take in following up on its programme of action. The
Committee is buoyed by the constructive engagements with the Venice Commission
and will shortly organise a workshop wherein concrete proposals on how best to
pursue its mandate will be thrashed out.
(5) Recommendation
The
verbal invitation extended by the Venice Commission to
Report to
be considered
ADDENDUM
The Venice Commission held an exchange of views on a
number of draft opinions with a view to their adoption. The following is the synopsis of the
engagements on the draft opinions and reports that were deliberated during the
84th plenary session.
* The Commission was invited to hold an exchange
of views with Mr Akika Minashvilli and Mr Pavle Kublashvilli, Members of
Parliament of Georgia, and to examine, with a view to adoption, the draft
opinion on the draft constitutional law on changes and amendments to the
Constitution of Georgia, drawn up on the basis of comments by Messrs Bartole,
Scholsem and Sorensen and Ms Nussberger.
The Commission held an exchange of views and adopted the opinion on the
draft constitutional law on changes and amendments to the Constitution of
Georgia.
* The Commission was invited to examine, with
a view to adoption, the opinion on the draft law amending the law on judicial
powers and the draft law amending the criminal procedure code of
* The Commission held an exchange of views
with Mr Sadullah Ergin, Minister of Justice of Turkey, on the planned
implementation of the constitutional referendum and the Commission’s role in
this respect.
* The Venice Commission was requested by the
authorities of the
* The Commission held an exchange of views
with Ms Másnohorská, Director- General for Global Challenges, Human Rights,
International Organisations at the Ministry of Foreign Affairs of the
* The Commission held an exchange of views
with Mr Yuriy Prytyka, Deputy Minister of Justice of Ukraine, and Mr Pylypenko,
member of Parliament, and adopted the opinion on the law on the judicial system
and the status of judges and the opinion on law on the prevention of abuse of
the right to appeal, both prepared jointly with the Directorate General of
Human Rights and Legal Affairs of the Council of Europe. In addition, the
Commission adopted the joint opinion by the Venice Commission and Organisation
for Security & Co-operation in Europe (OSCE) and Office for Democratic
Institutions and Human Rights (ODIHR) on the draft law on Freedom of Assembly
in
The
Commission was informed of the request from the Monitoring Committee of the
Parliamentary Assembly to prepare an opinion on the constitutional situation in
Ukraine, following the recent decision of the Constitutional Court to declare
unconstitutional the Law of Ukraine “On amendments of the Constitution in
Ukraine” dated 8 December 2004 No 2222-IV due to violation of the
constitutional procedures for its consideration and adoption.
Reports and studies
Report on individual access to
Constitutional Justice
The
Commission was invited to examine, with a view to adoption, the Report on
individual access to Constitutional Justice.
The Commission postponed the examination of this report and invited all
members to inform the Secretariat about the accuracy of the report, in relation
to their own country, before 15 November 2010.
Draft Joint Guidelines on political parties by Organisation for Security & Co-operation in
The
Commission adopted the joint OSCE/ODIHR Venice Commission Guidelines on
Political Parties.
Report on the role of the opposition parties
A
report on the role of the opposition, prepared in response to the request of
the Parliamentary Assembly, and drawn up on the basis of comments by Mr
Sejersted, Ms Nussberger and Mr Özbudun following consideration by the
Sub-Commission on Democratic Institutions, was also adopted.
Report of the Sub-Commission on
Working Methods of the
The
Commission was briefed on the results and conclusions of the meetings of the
working group which met on 1 October 2010 and 14 October 2010
respectively. The Commission adopted a
set of proposals concerning the working methods, prepared by the Sub-Commission
on procedural matters, to be implemented as of January 2011 and to be
reassessed at regular intervals. The
Commission decided on the composition of the Scientific Council, the primary
responsibility of which would be to contribute to the high quality and the
consistency of the Commission’s studies and opinions. The provisional composition of the Scientific
Council would be as follows: Mr Helgensen, Mr Buquicchio, Ms Flanagan, Mr
Paczolay, Mr Dimitrijevic, Mr Esanu, Mr Hoffmann-Riem, Mr van Dijk and Mr
Jowell.
Draft
Amicus Curiae
Brief for the Constitutional Court of Bosnia and Herzegovina
The
Commission was requested to examine, with a view to adoption of the
above-mentioned brief in relation to a request of the Croat Caucus to the House
of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina for review
of the constitutionality of certain provisions of the Electoral Law of Bosnia
and Herzegovina, the Statute of the City of Mostar and the Amendment CIause to
the Constitution of the Federation of Bosnia and Herzegovina. The
Commission adopted the Amicus Curiae Brief for the Constitutional Court
of Bosnia and Herzegovina on the compatibility with international standards of
certain provisions relating to local elections and the statute of the City of
Draft Opinion on the Law on Public
Assembly of
The
Commission adopted the joint opinion by the Venice Commission and OSCE/ODIHR on
the Law on Public Assembly of Serbia.
Interpretative Declaration to the
Code of Good Practice in Electoral Matters on the participation in elections of
people with disabilities
The
Commission adopted the above mentioned on the basis of proposals from the
European Co-ordination Forum for the Council of Europe Disability Action Plan
2006-2015.
In
addition, the Commission adopted the report on the timeline and inventory of
political criteria for assessing an election, previously adopted by the Council
for Democratic Elections.
Amicus
curiae for the
Constitutional Court of the
The
Commission was informed about a request for an Amicus curiae brief by the Constitutional
Court of the
Constitutional developments in
The
Commission was briefed by Mr Mauricioa Gonzalez Cuervo, President of the
Constitutional Court of Columbia, on the constitutional situation in that
country and possible co-operation with the Commission. Mr Cuervo informed the
Commission on the tension between the indigenous legal framework and the
country’s legal system, and highlighted the need for possible assistance in
harmonising these into a workable system