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PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS STANDING COMMITTEE
14 November 2006
SWART'S CONSTITUTION SIXTEENTH AMENDMENT BILL & VAN DER MERWE'S CONSTITUTION FIFTEENTH AMENDMENT BILL (FLOOR CROSSING);
Acting Chairperson: Mr S Mshudulu (ANC)
Documents handed out:
Minutes of meeting held on 7 November 2006
Floor Crossing: Research Terms of Reference (see Appendix)
Mr Swart’s Constitution Sixteenth Amendment Bill, dealing with the proposed reservation of the definition of marriage to heterosexual couples, was deliberated. The ANC and DA indicated that they were not in support of this proposal, and the IFP Member had not been able to obtain a mandate and therefore abstained from voting. The proposal was not supported.
The Committee noted the terms of reference given to the Committee researchers in respect of Mr van der Merwe’s Constitution Fifteenth Amendment Bill , dealing with Floor Crossing. The researchers cautioned that they might not be able to deal with sampling public opinion, but that they would do all they could to bring all the information before Members so that they could study it during the constituency period, in preparation for deliberations in the new year.
The Chairperson had sent apologies that she would be late. After more than fifteen minutes, owing to time constraints, Mr S Mshudulu (ANC) proposed that an Acting Chairperson be nominated to proceed until the Chairperson could be present. This was agreed to and Mr Mshudulu was asked to be Acting Chairperson. The Committee secretary confirmed that there was a quorum.
Mr Swart’s Constitution Sixteenth Amendment Bill
The Acting Chairperson stated that Members followed procedures which were well understood. Mr Swart’s proposal to amend Section 39 of the Constitution by reserving a definition of marriage to apply to heterosexual couples only had been deliberated on intensively and in a positive spirit. The Committee had done research and had heard submissions. He asked for final comments.
Mr A Ainslie (ANC) commented that there were, to his mind, serious flaws in the proposal presented by Mr Swart. Firstly, Mr Swart had relied heavily on the position in other jurisdictions. The judgment in the Fourie matter had commented that this was largely irrelevant, as South Africa had to look to its own constitution and other sources, including the Congress of the People and resolutions passed at Kliptown, and the Freedom Charter. These sources emphasised the value of human dignity, equality and freedom.
Mr Ainslie said that the ANC felt that the proposed amendment went against the very heart of the Bill of Rights, in particular Sections 9(3) and 9(4), which prohibited discrimination on a number of grounds including sexual orientation. Section 9(1) of the Constitution granted everyone equality before the law. The ANC believed that this right granted could not be denied, and that acceptance of the proposal would have this effect.
Thirdly, he commented that Mr Swart gave a very narrow definition of marriage and the family, which in reality hardly existed any more. The institutions of marriage and the family were undergoing change to meet the changing needs of modern society. The ANC believed the time was right to extend the definition of both marriage and the family to embrace same sex marriages. For all three reasons, the ANC would not support the amendment.
Mr G Magwanishe (ANC) indicated that he fully supported the views expressed by Mr Ainslie.
Ms I Mars (IFP) submitted that unfortunately the IFP would have to reserve their position as they had been unable to discuss the matter in caucus and she did not have a mandate. Mr Bekker had not been available to deal with the matter.
Mr C Lowe (DA) reported that the Democratic Alliance had been able to caucus and had instructions from the Chief Whip. The DA considered it inappropriate to rush into legislation of this nature in the face of the Constitutional Court ruling. The proposal was not in line with the equality clause of the Bill of Rights. Although the DA’s role was not to examine the merits of legislation, this was a serious proposition, and amounted to discrimination. The DA therefore did not support the proposal. Constitutional Court ruling and the fact that it failed to pass the equality clause, the Democratic Alliance would have to vote against the proposal.
Since the majority of Members indicated their disagreement with the proposal, it was not passed.
Mr Van der Merwe’s Constitution Fifteenth Amendment Bill (Floor Crossing)
Two parliamentary researchers, Ms Christine Silkstone and Mr Xolile Majola, were welcomed to the meeting.
Mr Mshudulu stated that issues touching on the Constitution were very sensitive because Members were custodians of the constitution. That sensitivity had led this Committee to request Dr Gabriel, the Manager for Information Services to assist with further research on floor crossing.
Mr Ainslie summarised that the research Terms of Reference were to produce a resumé of the Parliamentary discussions, and considerations which had led to the initial adoption by Parliament of the necessary legislation allowing floor crossing. In addition the researchers should give the results of any surveys undertaken to assess public opinion, and, if no such surveys were available, to undertake a survey based on a small sample of a cross-section of society to assess public opinion on floor crossing. The researchers were also asked to summarise the position with regard to floor crossing in at least two developing countries and two developed countries, confining the context to the electoral systems in place in the countries studied.
Ms Mentor arrived, thanked the committee for continuing the meeting in her absence, and took over as the Chairperson.
The Chairperson added that the researchers were asked to bring the resumé referred to by Mr Ainslie, relating to the deliberations, recommendations and discussions of the previous ad hoc committee, during the constituency period. Members should then study the information between now and the next committee meeting in January, so that they could engage more meaningfully, having the benefit of all the relevant information.
Ms Christine Silkstone, Parliamentary Researcher, responded that the terms of reference were very helpful. She was concerned that the Research Unit might not have the capacity and time to undertake the public opinion survey, but would see what could be done.
The Chairperson agreed that the Committee had had the same reservations about the magnitude of the task, but had taken into account that Parliament had recently been able to conduct a mini survey on the attitude of South Africans to the emblem, and produce a report within a short space of time.
Mr Mshudulu asked the researchers to interact with the Chairperson, Mr Ainslie and Ms Mars as members of a subcommittee. He thanked the Researchers for honouring the invitation and indicated that the Members and the public would learn much from them.
The Chairperson thanked the committee for its serious attitude to Committee business throughout this term and wished them a peaceful and blessed constituency period. Ms Mars, on behalf of the Committee, returned the compliment to the Chairperson.
The meeting adjourned.
12 November. 2006.
Private Members Legislative Proposals and Special Petitions Select Committee: Floor-Crossing: Research Terms of Reference.
1. A resume of the Parliamentary discussions and considerations which led to the adoption by Parliament of the necessary legislation allowing floor-crossing.
2. The results of any surveys undertaken to assess public opinion with regard to floor-crossing. If no appropriate surveys are available, then a survey based on a small sample of a cross section of society to be undertaken to assess public opinion in this regard.
3. The position with regard to floor-crossing in at least two developing countries and two developed countries with reference to the electoral systems in place in the countries studied.
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