We all know Parliament as the “law-making” body. The legislature is constitutionally empowered to make new laws, amend existing laws and repeal old laws. Those in the know are aware of the trajectory the law-making process undergoes – from introduction to being passed. However, there are instances where, after Parliament has passed a Bill and sent it to the President for assent, the President pauses and decides not to sign the Bill into law. In these cases, the President must refer the Bill back to Parliament to consider his reservations. 

When considering legislation, the President seeks counsel and considers submissions and petitions made. In some cases, this includes listening to concerns from beyond the country such as foreign governments and international bodies.

Let’s take a closer look at what can happen when the President sends a Bill back to Parliament – known as remitted bills.

 

In processing a remitted Bill, do parliamentary committees have to confine themselves to dealing with the President’s reasons for the Bill remittal, or do they have scope to make additional changes to the Bill?

Parliament’s Joint Rules outline the procedures to be followed in reconsidering a Bill by the National Assembly (NA) and the participation of the National Council of Provinces (NCOP) in the process.

Joint Rule (203) stipulates that on receiving a ‘remitted Bill’, the Speaker must refer the Bill and the issues raised by the President to an NA committee. In processing, the committee ‘must consider, and confine itself to the President’s reservations, and must consult with the corresponding NCOP committee if the reservations are procedural and would require the involvement of the NCOP.

This provision is clear and has been supported by multiple legal opinions. When an NA committee is processing a remitted Bill, it is limited to the issues raised by the President, and cannot revisit policy issues or any clauses not identified by the President.

 

How does the Committee assess the President’s reservations?

In referring a Bill back to Parliament, the President can express procedural and/or substantive reservations.

Some examples of procedural defects flagged by the President include incorrect tagging/classification; and insufficient public participation in specific clauses or the Bill as a whole. Substantive reservations include specific clauses perceived to be in violation of the Constitution; international treaty implications; and impermissible delegation of legislative powers to a Minister.

Joint Rules 205 and 206 distinguish between procedural defects and substantive defects. A senior parliamentary legal advisor explained that in practice procedural defects would automatically go to the NCOP, such as where there was a lack of public participation or absence of quorum.

Any procedural complications in parliamentary proceedings to correct procedural defects may be referred to the Joint Rules Committee for resolution.

The remittal of Bills is not a regular occurrence and in the past Parliament has decided to agree and accommodate the President’s reservations in the majority of instances. Of the 18 Bills (Annexure A) returned to Parliament by Presidents since the advent of democracy, seven (Annexure B) had classification/tagging concerns.

After a Bill is returned, the committee receives legal advice from Parliament’s Constitutional and Legal Services Office and works through each issue raised and makes a determination whether it agrees or disagrees.

If the committee disagrees with the President and decides not to accommodate his reservations, the Bill is returned to the President as is. This was the case with the Competition Amendment Bill (2008), following its referral in 2009. After reconsideration, the Portfolio Committee on Trade, Industry and Competition resolved that the Bill would remain unchanged, irrespective of the reservations expressed about certain clauses.

If a committee deems fit to consider broader issues beyond the President’s reservations, a separate Bill can be introduced at a later stage.

In accordance with Joint Rule 208, the committee can also decide to recommend to the NA that a remitted Bill be rejected if it deems the Bill’s substantive or procedural defects irremediable. This was the case with the Expropriation Bill (B4-2015) which was returned to Parliament twice by former President Zuma on procedural grounds, firstly on 20 July 2016 and secondly on 14 February 2017. In August 2018, the Portfolio Committee on Public Works resolved to reject the Bill so that it may be reintroduced at a later stage as “there were a lot of issues that made the Bill problematic.” A new Expropriation Bill was later introduced in 2020.

 

Public participation on remitted bills

In line with section 59 of the Constitution, NA committees re-advertise the remitted Bill for public comments to ensure a diverse set of stakeholders and constituencies are active participants in the reconsideration process.

The committee makes a call on the sufficiency of the public participation process based on an assessment of the materiality of the changes to be made on the Bill to address the President’s reservations; the relationship taken as a whole to the original clauses that were subject to public comment; and finally the benefit of insulating the Bill against future constitutional attack, by providing for public consultation on the relevant referred clauses or provisions.

 

Changing the tagging of a remitted Bill

Guided by the issues raised by the President, an NA committee can decide that a remitted Bill be reclassified/retagged by the Joint Tagging Mechanism, say from a section 75 Bill to a section 76.

In researching this piece, we found that because section 76 Bills must be considered by both Houses, Parliament tends to err on the side of caution, and will reclassify a bill in order to meet the standard of adequate public participation.

Changing the classification of a remitted Bill affects the processes of involvement by the NCOP.

A senior parliamentary legal advisor explained this in August 2020 following remittal of the Copyright Amendment Bill and the Performers’ Protection Bill. The NCOP and provincial legislatures get to receive briefings on the remitted Bill as if they had never seen the Bill before, following which both the Council and legislatures would have to conduct public hearings on the Bill. Neither the NCOP nor the provinces would be confined to just dealing with the President’s reservations as the NA committee would have been.

Crucially, the NCOP and provincial legislatures’ public participation processes and consultation periods should be sufficient and should not appear to be highly compressed such that they compromise the public’s ability to engage meaningfully. This point was made by another parliamentary legal advisor in her February 2015 opinion to the Portfolio Committee on Minerals and Energy after the Committee had received President Zuma’s list of reservations which had seen him not signing the Mineral and Petroleum Resources Development Amendment Bill [2013].  “Essentially Parliament has a significant measure of discretion to determine the public participation necessary, however what is required is that Parliament acts reasonably. Reasonableness in this context is dependent on several factors, including: the nature and extent of public impact brought about by the legislation, particularities which affect the efficiency of the legislative process such as time and expense, any rules adopted by Parliament regulating public participation, and the urgency of the legislation.”

 

Conclusion

After the defects identified by the President are considered in committees, the remitted Bill would then be debated and a decision taken by the Houses. If Parliament accommodates the President’s reservations and passes an amended Bill, the amended Bill is then re-submitted to the President for signing.

The process of dealing with a presidential referral is a value-chain (step-by-step process) and therefore, after reconsideration, the President must sign the Bill.  If the President believes his reservations were not adequately accommodated, he can refer the Bill to the Constitutional Court for a decision on its constitutionality.

In sum, the remittal of Bills to Parliament is a necessary check and balance. Its aim is to ensure that legislation passes constitutional muster and that the correct processes are followed. The legislative process is sometimes not a linear one but the end result should always be ‘good’ legislation.

 

Annexure A – Full list of Bills remitted by Presidents since the advent of democracy

 

Annexure B- Bills returned to Parliament with classification/tagging concerns. The table includes concerns about the Bills not being referred to the National House of Traditional Leaders (NHTL) as this decision is made by the JTM at the same time as classification is considered.

 

Bills Returned to Parliament by the President 2020