Van Der Merwe's Constitution Fifteenth (Floor Crossing), Swart's Constitution Sixteenth Amendment Bills

Meeting report

PRIVATE MEMBERS’ LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS STANDING COMMITTEE
24 October 2006
VAN DER MERWE'S CONSTITUTION FIFTEENTH AMENDMENT BILL (FLOOR CROSSING); SWART'S CONSTITUTION SIXTEENTH AMENDMENT BILL

Chairperson: Ms P Mentor (ANC)

Relevant documents:
Mr J van der Merwe (IFP) Memorandum and proposed Constitution Fifteenth Amendment Bill
Mr S Swart (ACDP) Memorandum on Constitution Sixteenth Amendment Bill

SUMMARY
Constitution Fifteenth Amendment Bill (Floor Crossing)
Mr van der Merwe had presented this proposal the previous week and the Committee continued discussion and debate. There had been suggestions that this proposal should be forward to the Joint Committee on Constitutional Review with recommendations from this committee. However, the Chairperson had problems with this as there was a specific time period each year for such submissions to that committee. She outlined the procedures that had to be followed by this committee and these could not be circumvented in any way.

Mr Swart’s Constitution Sixteenth Amendment Bill
Mr Swart presented the Constitution Sixteenth Amendment Bill, the object being that Section 39 of Act 108 of 1996 be amended by the addition of a subsection reading “(4) The Constitution shall be interpreted to mean that marriage was a voluntary union between a man and a woman.” He cited international best practice. However, it was argued by some that this would be a retrogressive step especially as South Africa's Constitution was considered as one of the most progressive in the world. The Committee will continue deliberation on this proposal.

MINUTES
Fifteenth Constitution Amendment Bill (Floor Crossing)
The Chair said that she agreed with the suggestion in the previous meeting that research on floor crossing and how it varied in different democracies was needed. She suggested looking into two cases of advanced democracies and two cases of emerging democracies.

Ms M Maine (ANC) supported the chairperson’s proposal that research was needed.

Mr Ainslie agreed there was a need to discuss the issue on an informed basis, and suggested that the Committee begin with the relevant Constitutional Court case and use that as a pilot document. He said that Mr van der Merwe seemed to indicate that floor crossing was undemocratic, but it had been a Constitutional Court decision.

Ms Mentor submitted that floor crossing was not an undemocratic practice; it was practised throughout the world. It might vary from country to country but it was not the observation of the Constitutional Court that it was undemocratic. The records of the Constitutional Court should be referred to, and she suggested that these be included in party discussions between now and the next meeting.

Ms Mentor also brought to the Committee’s attention an informal request. There had been much interest in the floor crossing matter on the part of the public, the media and civil society organisations, and there had been a suggestion that this Fifteenth Constitutional Amendment Proposal should not be considered by this Committee but be forwarded to the Joint Constitutional Review Committee, acknowledging these recommendations. It had come up again very strongly that this committee drop its engagement with the proposed bill because it should be forwarded to the Committee on Constitutional Review which, in terms of the Constitution, had to consider public proposals for constitutional changes.

She commented that she had two problems with that proposal. Firstly, there was a specific time each year when public submissions could be made to the Joint Constitutional Review Committee, which was in April/May. She thus questioned the correctness in timing of being allowed to do that outside the period allowed in law. Secondly she felt very strongly that the Committee could not undermine the Rules of Parliament and the constitutional right of Members of Parliament to propose bills.

Ms Mentor said that the Constitution gave the right to any Member of Parliament to propose a bill. The Rules of Parliament had set out that whenever a Member proposed a bill, it would come before this committee according to a particular process: the Member applied to the Speaker, it was then brought before this committee and the committee would consider the matter and send it back to the Speaker who then tabled whatever recommendations came from this committee to the National Assembly. The National Assembly would decide whether to send it on to the relevant committee for processing, totally reject it or augment the recommendations.

She continued that the Committee could not undermine that path. The Constitution and the Rules of Parliament forced the Committee to consider that bill and to make proposals to the Speaker, who would bring it before the National Assembly. It would otherwise undermine the rights of Members if there was not appropriate consideration of their legislative proposals. There were no short cuts. If at the end this committee agreed that a bill be enacted, the committee would return it to the Speaker who would give it to the National Assembly. The National Assembly would send to either this committee or the Justice Portfolio Committee, or both. She had very strong views about the proposal coming from the Joint Constitutional Review Committee suggesting the committee drop this proposal, and in so doing ignore the process. She had contacted the Presiding Officers and they also shared the view that that procedure could not be circumvented in any way.

The Chair said that she would be responding to that request. The Committee was also invited to attend that committee’s meeting on 27 October. She would not be attending, but individual members could attend if they wished. She did not wish to formalise an intention that could be construed to mean that the committee was abandoning the process. She would be asking the Presiding Officer to correspond with that committee.

Mr S Swart (ACDP) asked, in terms of the parliamentary rules that indicate that this committee consult the relevant portfolio committee, whether that would be the Justice or Home Affairs Portfolio Committee.

Ms Mentor responded that once there were in-depth deliberations on the bill, one would consult those committees that were affected or related to the matter. However, the request had been that this committee totally abandon the process.

Mr A Ainslie (ANC) agreed with the Chair’s proposal, and especially to contact the Office of the Speaker. The committee was under the instruction of the Speaker. This did not preclude consultations or discussions with any other committees. This was the committee that made the decision to accept or reject a legislative proposal, and only the Speaker gave other instructions.

Ms Mentor agreed and said that the Speaker’s Office expected this committee to at least have considered this matter before going into recess on 16 November. If not, the committee might have to stay on longer to conclude the matter.

Sixteenth Constitution Amendment Bill
Mr Steve Swart (ACDP) noted that the previous week, there had been very limited time to present his proposal. The issues of the Constitutional Court case of Fourie had touched very deep convictions and strong emotions, both from the religious and traditional sectors and gay groups. It was very important to indicate that the Marriage Alliance, which reportedly represented some seventy to eighty denominations and some 20 million South Africans, had asked for a constitutional amendment along the lines suggested in his legislative proposal. Today the National House of Traditional Leaders had also requested a constitutional amendment along the lines suggested.

It was also important to note that in its judgment, the Constitutional Court had communicated that the protection of the family and family life in conventional style relationships was an important governmental objective. In the numerous court cases Mr Swart had studied, there was a balance between the gay rights and religious beliefs and the court said the religious beliefs held by the great majority of South Africans must be taken seriously.

The ACDP had suggested a constitutional amendment after looking at various international jurisdictions and had taken advice as to where it would be the least offensive in terms of not amending Section 9.

Mr Swart touched on some international jurisdictions. At the moment only five countries internationally allowed same sex marriages, many countries allowed civil unions but did not say that it should be marriage, which was the very important distinction.

The French Parliament this year, because of the rights of children, disallowed same sex marriages because they said that a child was entitled to both parents. New Zealand had more positive rights protecting sexual orientation of gay people but also, in terms of international jurisdiction, allowed legal benefits to gay couples without touching on the institution of marriage, which was believed to be a central aspect of society. Last year California had proclaimed a constitutional amendment banning same sex marriage. They allowed civil unions but not same sex marriages. The Californian Court said the people and not the court should preside over the making of law. The Constitutional Court judgement of Fourie had given very narrow parameters. In  the current Home Affairs Portfolio Committee public hearings, only one or two groupings had accepted the Civil Union Bill. He argued that a constitutional amendment would assist a Civil Union Bill that was passed, in the long term, to defend against a Constitutional Court case that would definitely come next year some time.

Mr Swart  said that the ACDP fully appreciated that the deadline of 1 December was looming and the proposal was to follow the tradition of Africa and not accept any same sex marriage. He emphasised that the concept of same sex marriage be called a civil union. Uganda had recently passed a constitutional amendment that marriage was lawful only if entered between a man and a woman. Nigeria similarly addressed this issue.

Mr Swart asked that this submission be considered. He referred to the impact on children and said that the emphasis should be on the protection of the institution of marriage.

The Chairperson thanked Mr Swart and asked him to submit what he had in writing to the committee.
He had been afforded extra time to make recommendations to the committee. He could attend the meeting but not participate in the deliberations of the committee or influence the direction of the committee, only to make presentation.

Ms Mentor stated that she had indicated on air the role of the legislature and the role of the public in the making of legislation. Mr Swart had correctly been speaking about convictions and emotions. She would think members of the legislature of Parliament were above emotions, above religious convictions, because it should not influence deliberation on the matter. Only upholding the Constitution should influence deliberation. It was good to know of emotions and convictions but as a legislature, it must be above those things. She noted that Mr Swart was not against civil union.

Mr Swart responded that the party had not taken a decision on that but were just looking at protection of the institute of marriage.

Mr Ainslie was trying to establish what principles motivated the proposal that this particular interpretation of marriage should be entrenched in the constitution. The committee must not be swayed by street activity; he would be persuaded on the basis of the principle. He reiterated that the State may not discriminate directly or indirectly against anyone, including race, sex or sexual orientation, and that no person may discriminate on the same basis. If this amendment were successful would one section of the constitution allow it and another section of the constitution disallow it.

Mr Swart said that he fully appreciated the Chairperson’s comments about public sentiment and adhering to constitutional democracy. One of the main arguments being looked at was - what was international best practice. His party’s understanding was that international best practice was civil unions opposed to marriage and there was a world-wide move to protect the institution of marriage. New Zealand had a positive right to protect people, instead of a negative right that said there may not be any discrimination. They had said that they would not allow same sex marriage, they would allow civil union, which gives the same legal framework and benefits for homosexuals.

He continued that the principle was that it was very important for society, for the common good and in the interests of society, to recognise the heterosexual pattern of marriages and recognise that social pattern which every civilised society had adopted. It also related to the propagation and protection of children and of the family. History, nature, science, anthropology, religion and theology were all in vigorous support of marriage being a union between a male and female for the purpose of creating a stable family. Families even preceded law. There were many arguments to point that through law we had changed the institution of marriage, redefining the institution of marriage that existed even before the law. Western and African societies regulated marriages but did not redefine marriage, and civil unions were international best practice.

He responded to Mr Ainslie’s reference to Section 9(1) and 9(4) of the Constitution, saying that that was why he did not propose an amendment to this specific section but had proposed an amendment to the interpretation clause. This would still allow for the legislative framework that the Constitutional Court had laid down, and that the government had proposed in the civil union legislation. This would allow for legal benefits and, his party believed, would comply with 9(1) and 9(4). One would still have the Civil Union Bill that would likely be passed on 1 December, and a constitutional amendment would buttress the institution of marriage. Legal advice was that it would not conflict with 9(1) and 9(4), because it was a negative right, the right not to be discriminated against. Meeting that right needed the legislative framework.

Ms M Maine (ANC) said, with reference to New Zealand law, there were many things in this country that were not the same there. They may not have the same problems we had in this country. Ms Mentor agreed.

Mr Swart clarified that his party would be debating the issue of civil unions. No doubt this matter would go back and that might assist the government in having a constitutional amendment.
He emphasised that this was purely an interpretation clause, and not saying the rights under Section 9(1) taken away, only that marriage was interpreted as between a man and a woman.
He had mentioned New Zealand because their interpretation of sexual orientation rights were much higher than even in our constitution. What was proposed in the bill was to touch the institution of marriage.
What do we do with the situation in South Africa? We believe homosexuals need to be treated with empathy, with the right to pensions, to medical aids and various rights that had already been set out in our courts. The issue of civil unions would recognise and that was something we would need to look into and take a position on that, and not going the route of amending marriage, and that was what the gay people had said.

Ms P Sekgobela (ANC) suggested the committee and Home Affairs discuss and finalise the issue.

Ms Mentor agreed, but the ACDP had come up with this. Technically their bill was not about civil union and could not say were waiting for the civil union process. Mr Swart was exercising his constitutional right. He was proposing an addition to the Bill of Rights but had taken the constitutional angle.

Mr Swart clarified that the amendment could not affect the Civil Union Bill. This amendment speaks only of the institution of marriage; civil union would be separate to that unless the word 'marriage' was used. It was a clear legal interpretation of that.

Ms Mentor declared that the Committee would continue to engage on the matter. She had misgivings in two parts: Mr Swart was proposing to add a Section (4) to the end part of the Bill of Rights with an interpretation of marriage. The problem she had with the proposal was the location of the proposed bill in the Constitution. Marriage was not a right - it was a choice. One chose to marry. It would not be appropriate to put that interpretation under the Bill of Rights., that would be meddling with rights. A right was not something one chose – there was the right to dignity, the right to employment. Marriage was not a right and therefore could not be defined in a Bill of Rights.

Secondly, In terms of propagation, marriage was not always necessary for the giving of offspring. That might be a definition from a Christian perspective. Even when Cardinal Napier had made a submission to the Home Affairs Portfolio Committee, arguing that marriage was an institution of Biblical origin to propagate, members of his own church had publicly opposed this, saying people married for other reasons and sometimes chose to marry but not have children. She asked members to respond.

Mr Swart appreciated Ms Mentor’s argument as there were many single parents and couples that could not have children, but where there were existing children, he referred to the rights of those children. He was not saying the right to marriage must be enshrined in the Constitution. What the interpretation clause said was that when interpreting a right contained in it, such as the right to sexual orientation, then in that context to look at marriage being that of a man and a woman and in that context, it was purely an interpretation. His understanding was that when the courts considered a bill of rights it did not deny other rights that were recognised by common law, custom law or legislation. When a court looked at the rights here, it would look at other aspects to help it interpret and this would be a bill to assist them when looking at the concept of marriage as opposed to civil union. It was purely an interpretation tool, not a aright. He thanked the Committee for their continued deliberations on this issue.

Mr Ainslie said he was quite suspicious when looking at countries such as New Zealand and California. When it came to bills of rights and constitutions, we were the most progressive in the world and they took the lead from South Africa on human rights issues. For us to look at other countries and antiquated frameworks, would be retrogressive. With regard to the interpretation clause, the Bill of Rights was crystal clear in saying one may not discriminate against anyone on the basis of sexual orientation – this legislative proposal did.

Ms Mentor asked Mr Swart to please submit his motivation in writing. She agreed with Mr Ainslie. She had recently presided at a conference in Washington on the issue of human rights within the context of secrecy, being the nature of intelligence. Those countries were asking South Africa to lead the way in terms of the strength of its Bill of Rights. They acknowledged that our democracy was the most advanced.

She asked Mr Swart to show her where in the Bill of Rights, there was an interpretation of any sort. Our Bill of Rights was based on the Universal Declaration of Rights of the United Nations, which was the springboard for our Bill of Rights. Marriage was defined, why depart from the Universal Bill of Rights?

Mr Ainslie submitted that South Africa had a constitutional democracy; it was up to the Constitutional Court to make interpretation and not for us to do the work for them.

The Chairperson concluded that the Committee’s role was to write legislation; the Constitutional Court was to interpret.

Minutes of meeting held on 17 October 2006 were adopted and the meeting was adjourned.

Appendix:
United Nations : Universal Declaration of Human Rights
 Article 16.
(1) Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
(2) Marriage shall be entered into only with the free and full consent of the intending spouses.
(3) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.