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PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS: STANDING COMMITTEE
31 October 2006
VAN DER MERWE'S CONSTITUTION FIFTEENTH AMENDMENT BILL (FLOOR CROSSING);
SWART'S CONSTITUTION SIXTEENTH AMENDMENT BILL
Chairperson: Ms P Mentor (ANC)
United Democratic Movement v President of the Republic of South Africa and Others (African Christian Democratic Party and Others intervening: Institute for Democracy in South Africa and Another as Amici Curiae)(No 2) 2003 (1) SA 495 (CC)
Response to questions from the Committee by Steven Swart ACDP MP, 30 October 2006
Memo on Mr Swart’s Constitution Sixteenth Amendment Bill
Legislative Proposal from Mr Tertius Delport (DA) on Floor Crossing
Van der Merwe’s Constitution Fifteenth Amendment Bill (Floor Crossing)
It was agreed that this matter was too important not to have public hearings before it was debated by the National Assembly. The electorate should participate in public hearings but the Chairperson informed the Committee that parliamentary rules prevented this Committee from doing so. She would try to get the rules changed so that after the opening of Parliament and the Budget Speech on 21 February, the Committee could hold public hearings
Mr Swart’s Constitution Sixteenth Amendment Bill
Mr Swart tabled information documents which the Committee had requested on the issue of marriage. Marriage was defined in the UN Declaration of Rights as a fundamental right, and as being between a man and a woman, and it speaks of the family as being the basic unit of society. The Committee decided to defer discussion on this until they had had read these documents. They would also obtain further documentation from the Home Affairs Portfolio Committee which was considering the Civil Union Bill.
Mr Swart’s Constitution Sixteenth Amendment Bill
Ms Mentor thanked Mr S Swart (ACDP) for responding to the homework given him by putting two documents before the Committee. She had asked him to check the international context because South Africa's Bill of Rights was derived from the UN Declaration of Human Rights. She said that he had put forward a very interesting document. Marriage was indeed defined in the UN Declaration of Rights as a fundamental right, and defined as being between a man and a woman, and spoke of the family as being the basic unit of society. She thanked Mr Swart for being so diligent.
Mr Swart responded that in the first document of 21 October he had highlighted certain parts of his first briefing to the Committee. The second document was in response to the questions put by the Chair and members. He added that the Home Affairs Portfolio Committee had two large files of relevant documentation arguing both sides of the matter, from all perspectives including gay lobby groups, that the Committee might find useful.
Ms Mentor proposed that as this was such a critical matter and this information had only just been received from Mr Swart, that the Committee read those documents and apply their minds until next week’s meeting. That would mean rescheduling the discussion until the following week. As chairperson dealing with this matter she had seriously applied her mind to the issue, and she was being lobbied - she was relentlessly under pressure from ANC members, members of the public, and the media on both this issue and that of floor crossing. The matter could not be taken lightly bearing in mind that Home Affairs was engaged in the matter and also the deadlines. She wanted robust discussion at the next meeting so that by the end of that meeting the Committee should be able to see the way forward. done. She expected a firm decision by next week as to the direction to take with this proposal.
Mr Ainslie seconded the Chair’s proposal but said he would like more material than Mr Swart had tabled. What Mr Swart had tabled clearly perfectly suited his argument. Reference was made to documents from the Home Affairs Committee but Mr Swart had been selective, he would like to see some additional documentation.
Ms Mentor gave Mr Ainslie the mandate to engage with the Home Affairs Portfolio Committee chairperson and go through those two files and check what could be counter, just to balance the views. Mr Swart had done what the Chair had asked him to do. Mr Ainslie was mandated, with the permission of the House, to do that on behalf of the Committee as soon as possible.
Mr Ainslie accepted, with the Chair’s instructions that the information be obtained before the next meeting.
Mr Swart said he fully agreed about the documentation. As Ms Mars was also on the Home Affairs Committee he suggested she could assist Mr Ainslie. His documents were very brief; there were very lengthy documents available.
Mr H Bekker (IFP) enquired from Mr Swart if he had also submitted his document to Home Affairs. Was there still time to hand in submissions to that committee?
Ms Mentor stressed that this was very sensitive and she did not want him to impose himself on parliamentary procedures. He may say to Home Affairs out of courtesy that the Committee was dealing with this matter, there was a need to respect the Home Affairs Committee. She could request them but as one Committee Chair to another Chair. She would also be phoning him to facilitate Mr Ainslie's request. If the Committee endorsed this, it must firstly check whether it agrees with the contents of Mr Swart's document before forwarding it to Home Affairs.
Mr Bekker was very satisfied and thought it was a wise way of moving forward. Unfortunately he would not be able to attend the meeting of 31 October but Ms Mars who was more informed on the matter would attand.
Ms Mentor asked that another member of the IFP attend with Ms Mars because the issue of floor crossing was the proposal of the IFP.
Mr Mshudulu felt it would be incorrect for the Committee to influence another Committee and pre-empt an outcome. The route to go would be through party representation. Referring to the submission of documents, he said any legal opinion was better than submissions because submissions represented interest groups, while academic legal opinion was balanced. A legal opinion would assist critical analysis and he referred to instances where the Committee had been guided by such legal opinion.
Ms Mentor agreed with Mr Mshudulu’s words of caution, but clarified that the documents were just part of information seeking. They would not be treated as a legal opinion, but would merely enrich the information base. None of the submissions that Mr Ainslie was to get would necessarily become accepted.
Ms I Mars (IFP) reminded the Committee that this was a very unusual process because it was actually working under a Constitutional Court mandate. Any information would be enriching.
Mr Swart clarified that he had not submitted any documentation to Home Affairs, which would have been improper. He had requested a constitutional amendment and the process was through this Committee.
He added that there was a very useful summary report that the Home Affairs Portfolio Committee was preparing which summarised all the submissions.
Ms Mentor agreed but she would first get permission from the Chairperson of that Committee and Mr Ainslie would follow through. Discussion on this legislative proposal would be deferred until 31 October.
Van der Merwe’s Constitution Fifteenth Amendment Bill (Floor Crossing)
The Chairperson thanked Mr Ainslie (ANC) for the document circulated on the Constitutional Court judgment in the matter of United Democratic Movement v the President of the Republic of South Africa and others. It highlighted the very important constitutional principles in the ruling, which gave insight into the matter before the Committee. Mr van der Merwe had emphasised that floor crossing was essentially undemocratic and that had not been the finding of the Constitutional Court on the matter.
Ms Mentor explained that she had done some preliminary research. Their Committee was a very interesting committee in terms of parliaments in the world. She had been given a gift from people attending the Inter-Parliamentary Union conference in Geneva the previous week – a book dealing with best practice guidelines for effective Parliament. Amongst others, the work of this Committee in terms of receiving public participation petitions and in terms of the issue of the Executive versus Members of Parliament proposing legislation, was seen as a guide for best practice effective parliament. She informed members how important this Committee was regarded internationally as a best practice model for parliaments of the world. She hoped this would encourage members.
Floor crossing was also very important and evoked wide interest from the electorate. Ms Mars was correct in saying that never before had a bill provoked the public to engage, as had the Civil Union Bill. It was also unique in terms of the Constitutional Court intervention. Likewise, never before had a piece of legislation demanded the input of the electorate as the issue of floor crossing had done. It was incomprehensible that she could lead a process and participate in a process that had direct bearing on the electorate without being able to hear them out.
The full House must debate this as it was far too important an issue. This was a multi-party Committee but once it concluded its recommendations on the matter of floor crossing, there must be space for it to be fully engaged by the whole House. Preceding that, there should have been full public hearings for the electorate. However, the Committee was hamstrung in terms of the Rules of Parliament because it could not hold public hearings.
Ms Mentor said she had received letters and e-mails. The bulk of e-mails came from those who had the means. The bulk of the communications were e-mails which were from a section of the electorate that had the means to communicate, which the ordinary people did not have. The Committee could not listen to the elite section of the community only. She had been very impressed by an elderly person who took the opportunity for the first time in her life to participate as Parliament was asking her to have her say – stating she hated floor crossing. This person said that when she voted she voted for a party not the individual and they must leave her vote in that party - a very strong letter from an ordinary South African. Westerford High School had sent an e-mail from the principal and each staff member. She had gone to the school to acknowledge the level of interest.
Ms Mentor proposed that preceding the process of taking the matter to the full House, the Joint Rules Committee should augment the Rules of Parliament to allow this Committee to hold public hearings. She could foresee the need for this Committee to hold public hearings, if it dealt with public petitions, or if the public petitioned it in the future on an issue of enormous public interest. The Committee did not have the mechanism for this.
Mr Mshudulu felt that if the Gauteng Legislature could do it at provincial level then why could this Committee not do it. At provincial level there existed this practice that was very democratic. They had to use those trends or precedents that were progressive examples of democratic practice. He suggested writing a letter that would emphasise the rights of people to participate in the process.
Ms Mars mentioned that she had just returned from the Russian Federation. They had floor crossing legislation that they were going to rescind in December.
Mr Ainslie also supported the Chair’s proposal. Mr van der Merwe’s core arguments were that floor crossing was not democratic and that there was massive public opposition to floor crossing. One of the ways to establish that would be to implement the Chair’s proposal to engage in public participation. However one would need a very tight time frame. The next round of floor crossing was September next year. The parliamentary process could take time. There would be a need to get a timetable in place very quickly, allowing the Committee to go around the country, getting the public to participate, getting the debate done in Parliament, and all before September 2007.
Ms Mentor had checked the Committee’s budget and there had been minimal expenditure. She proposed that after the opening of Parliament and the Budget Speech that they should hold public hearings. She would write a letter to the Speaker about amending the parliamentary rules to allow for this Committee to hold public hearings.
Ms Mentor concluded this had been a very fruitful meeting. The meeting was adjourned.
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