"Crossing the Floor" Legislation: briefing

Meeting report

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE; SECURITY & CONSTITUTIONAL AFFAIRS SELECT COMMITTEE: JOINT MEETING
12 November 2001
"CROSSING THE FLOOR" LEGISLATION: BRIEFING

Chairperson: Adv J H de Lange

Documents Handed Out:
Loss or Retention of Membership of National and Provincial Legislatures Bill

SUMMARY
The Portfolio and Select Committees were presented with the floor-crossing legislation. The aim of the meeting was to obtain the permission of the Committee to approach the National Assembly and ask for permission to introduce the Bill into Parliament via a Committee.

In the Draft Bill the prohibition on floor crossing has been retained with exceptions. The President, in consultation with leaders of political parties and Premiers, could make a proclamation outlining a period within which members could cross the floor. Members could then cross the floor only once in any given proclamation period. They would do so by informing the Secretary of the legislature in writing. The move could then only be completed if the party agreed to accept the member and communicated this fact to the Secretary in writing.

MINUTES
Adv de Lange reminded all present that in 1994 at the inception of the South African Constitution, a system of proportional representation was agreed to. The issue of proportional representation was found all over the Constitution, but nowhere more apparent than in section 46(1)(d), that provided generally for proportional representation, section 47(3) that dealt with the loss of membership and section 47(4) that dealt with how vacancies would be filled, all at the National Level. These same provisions were mirrored when it came to providing for proportional representation at the Provincial level. The corresponding sections were 105(1)(d), 106(3) and 106(4).

He pointed out that when it came to the local government level, no such provisions existed. At the local government level, South Africa had opted for a system of proportional representation, combined with the ward system. The grounds on which an individual could lose membership in a local government legislature were contained in section 158 of the Constitution.

However, when it came to 'crossing the floor', the relevant provisions are contained in Schedule 6 of the Constitution in Annexure A (which contains amendments to Schedule 2 of the Interim Constitution). Item 23 of that Schedule 2 provided that if an individual left a political party then they lose membership in the legislature. There was however a compromise in Item 23A which provided that an Act of Parliament could allow for the crossing of the floor.
Adv de Lange explained the implications of this item, saying that this was one of the instances where the Constitution could be amended through national legislation - this was one of the few instances where ordinary legislation would be able to change the Constitution. However, because the Constitution said nothing about floor-crossing at the local government level, it would be necessary to bring a constitutional amendment to remedy the situation at local level.

Adv de Lange said that he would not go into the debate around the subject, but noted that the debate had been raging since 1994. He added that in the preceding six to seven months, the floor-crossing debate had become increasingly heated but had reached an unprecedented level in the last two months. The issue being on the table once again, the Government had looked at the problem and decided on a number of possible options.

The first option was the retention of a total prohibition on floor-crossing. The second was a total sanction thereof. The third option, and the one that Adv de Lange said was being examined most closely, was the middle road. This middle road would be a compromise between the two extremes that would allow for limited floor crossing under limited circumstances. He also noted that there were possible variations of all three options.

Adv de Lange once again launched into an explanation of the situation. The floor-crossing provisions were scattered in the Constitution. Change of the position at the local government level would require amendments to sections 157 and 158 of the Constitution. However at National and Provincial level, ordinary legislation would be sufficient to change the position. For this reason the process would be completed in a two-stage procedure:
- The enactment of national legislation will be completed to change the position at National and Provincial level.
- The second stage, which would occur later, would be amendments to the relevant sections in the Constitution to accommodate the Local Government level. The constitutional amendments would only come later due to the associated procedural requirements.

He noted that if the Constitution was amended in relation to floor-crossing at the local government level, it would also be necessary to amend the Municipal Structures Act.

Procedure
Adv de Lange explained that there were three ways in which a Bill could be introduced:
- through the executive,
- by means of a private members Bill and
- through a Committee of Parliament.
It had been decided that this legislation would be introduced through a Committee of Parliament, specifically the Portfolio Committee on Justice and Constitutional Development.

Adv de Lange explained that it was for this reason he had brought the Bill before the Committee today. The aim of the meeting was to draft a resolution asking the House for permission for the Justice Committee to formally consider the Bill. If permission was granted, the Bill would then be published in a Government Gazette for a minimum of ten days. The aim of this notice would be to invite public comment, culminating in public hearings.

The Bill
Adv de Lange directed the Committee's attention to the preamble. Here he pointed out that Schedule 2 of the Interim Constitution, more specifically item 23A, as amended by Annexure A of Schedule 6 of the Constitution, was the most important feature. It was that provision which allowed the amendment of the Constitution through National legislation.

He pointed out that that because the new position in the Bill was a compromise, the prohibition on floor-crossing was retained. This retention was however subject to the new exceptions contained in the Draft Bill in subsections (3) and (4) of item 23A. The amended subsections (3) and (4) created the so-called "window of opportunity", which was the period within which floor-crossing would be allowed. Adv de Lange stressed that subsections (3) and (4) were the crux of the Bill.

Adv de Lange noted that there were other provisions or provisos that were attached to prevent indiscriminate floor-crossing. One such provision was that there could be no floor crossing within one year of an election. A question however was whether or not it would be desirable to extend this to mergers and subdivisions.

Adv de Lange noted that the effects of a floor-crossing was spelt out in subsections (3) and (4) while both these subsections were then made subject to subclause 5. Subclause 5 contained the actual mechanism that was being created to allow floor-crossing.
The mechanism chosen was similar to an election and provided that the President could make a proclamation in the Government Gazette, declaring a period for which floor-crossing would be allowed.

In terms of subclause 5(a) however, the President first had to consult with the leaders of all political parties in the National Assembly and the Premiers. This consultation requirement would mean that the President could not make such a proclamation on a whim.

Another such preventative mechanism was the requirement that the President would have to inform all the legislatures at least 21 days before such a proclamation is made. Adv de Lange commented that measures such as these were needed to build in an element of transparency. He noted that another important aspect was the fact that the proclamation could be made either at the National level, the Provincial level or both. Here it could be seen that the drafters have chosen to deal with the different spheres at their separate levels.

Adv de Lange explained that subclause 5(b) provided that the process could be initiated by the leaders of political parties in the National Assembly or provincial legislatures.

Another important restriction was the fact that in any one period, a member would only be allowed to cross the floor once. The change in political affiliation would have to be done by informing the Secretary of the appropriate legislature in the form of written letter. This letter would have to be accompanied by another letter from the political party the member seeks to join, saying that the party indeed accepted the member. Parties could also merge and subdivide. This action would also be accomplished by informing the Secretary in writing.

Adv de Lange said that subclause (6) was important as it dealt with the procedure to be followed after the proclamation period. Each party affected would have to submit a new list of candidates and the Secretary would have to publish this revised list in the Government Gazette within fourteen days.

Adv de Lange pointed out that in subclause (8), the provision allowing such a change to the Constitution to be effected through National Legislation was retained.

In conclusion, Adv de Lange commented that it was not a hard or complicated piece of legislation to comprehend. In summary he noted that the prohibition had been retained with exceptions. There were then procedural steps to be followed, through which the President, in consultation, could make a proclamation outlining a period within which members could cross the floor. Members could then cross the floor only once in any given proclamation period and they could do so by informing the Secretary of the legislature in writing. The move could then only be completed if the party agreed to accept the member and communicated this fact to the Secretary in writing.

Discussion
Ms S Camerer (NNP) looking at subclause (5)(d) was concerned that it allowed the President too much room to pick and choose in which sphere of Government to make the proclamation. She asked whether the constitutional implications of this had been looked at.

Adv de Lange said he had looked at the Constitution carefully and could not find anything that directly conflicted with allowing the crossing of the floor. He added that similarly he could find nothing wrong with allowing such crossing for only a limited period of time.

Ms Camerer was confused as to the relationship between subclauses (5)(a) and (b) and asked how these two sections related to each other. She asked specifically whether this would be able to allow for only one party to cross the floor.

Adv de Lange explained that what subclause (5)(b) did was provide for the situation where the leaders of a political party felt they had a problem that would best be solved by opening up the possibility of crossing the floor. These individuals could then approach the President and attempt to initiate the proclamation process. If the President then decides to make such a proclamation, it will apply to all and could not possibly apply to only one party.

Dr J Delport (DP) said that he was all for the possibility of the crossing of the floor. Politicians who represent the people who voted them into power should be able to change with the change in the views of the people they represent. Despite this however, he was completely opposed to an opportunistic crossing of the floor. To remedy this position and to prevent the undesirable, Dr Delport suggested that it might be wiser to provide that floor-crossing could be done only if a particular percentage of a party was willing to cross the floor. He added that the Committee should deal with the matter in principle and not in the context of a practical example. It would be important to remember that the "President" in the Bill was not Mr Mbeki, but that the Presidency was an office to be occupied by a range of people over the years to come. The ruling party was also not the ANC, but could be another party or a number of parties working together. The future was unclear and all contingencies needed to be accommodated. In light of his comment, Dr Delport asked whether the legislation was written in such a manner that it would prevent the opportunistic use of the legislation.

Adv de Lange told Dr Delport that his suggestions and comments were welcome and valid points. He said that these were precisely the concerns that he hoped would come to the fore in presenting the Bill to the Committee. He added that these were only the beginning of discussions and that Dr Delport's suggestion of requiring a percentage of the party to be willing to cross the floor was a good suggestion that would be seriously considered as a possible solution to the problem.

Adv H Schmidt (DP) noted that the South African Parliament and more specifically the Justice Committee boasted of following best international practices. Here Adv Schmidt asked to what extent this new move was consistent with this attitude or claim.

Adv de Lange told the Committee that most democracies had the floor-crossing principle and applied it in differing forms. Adv de Lange said that research would be done into the specifics but he could at present assure them that most democracies applied the principle.

Mr C Aucamp (AEB) in response to Dr Delport's comment said that an individual party member had his own right of mind. His or her decision to cross the floor could be just as much based on conviction as that of a group's. He added that if the concern was the interests of the public then more attention should be paid to the 180-degree turn that political parties do without crossing the floor.

Ms Camerer was concerned that there was a high degree of uncertainty in the public eye around the current political situation. This uncertainty was concentrated around the ruling party and its intentions. She added the President was the head of the ruling party and submitted that he should keep the public informed. Ms Camerer said she asked the question in light of an article she had read in a newspaper. In this article the top 100 commercial countries were rated. South Africa made it onto the list but was flagged as a country burdened with political uncertainty. To put the South African public at rest and to provide some certainty for the international investment market, the President should make his intentions public knowledge rather than just sharing them with the people he was negotiating with.

Adv de Lange replied that he was not quite sure what she was requesting. However, the uncertainty and the speculation will hopefully come to an end with the initiation of the two step process and more specifically the enactment of the legislation presently being considered.

Ms Camerer noted that the Committee had raised the issue of the possibility of manipulation and bargaining. She pointed out that the majority party leader would be the one to dictate the framework within which the negations and floor crossing were going to take place.

Adv de Lange added that the President could make no comment at present because there was no legislation. Once the legislation was in place the President would have his first opportunity to make a comment and outline his intentions.

In response to Mr Aucamp's comment, Ms Smuts (DP) agreed that an individual's choice to cross the floor could be motivated by conscience. However the problem here was the electoral system applied in South Africa. It had been decided at the Kempton Park negotiations to model South Africa's system on the Indian one and for this reason the list system is currently applied in South Africa. In light of this, the requirement of a percentage as per Dr Delport's suggestion would ensure that in the event of a floor crossing, one was dealing with a trend and not opportunism.

Adv de Lange added that this was ultimately a philosophical question asking whether or not a group of people had a better or more moral conscience than an individual. The use of the percentage was the better position but had not been provided for because a "window of opportunity" had been opted for. This meant that a member contemplating changing political affiliation would have a short period of time to consider it. Once they had moved, this change would be set in stone. Despite this it did not mean that such an option could not be discussed.

Mr P Swart (ACDP) asked whether the drafters had examined the certification judgement. He said that this judgement contained strong views against allowing floor-crossing and cited corruption amongst other things as a reason against. He said that it also raised the possibility of larger parties enticing smaller ones to join forces with them. This could be done to gain the necessary majority to pass constitutional amendments.

Adv de Lange called for the certification judgement to circulated. He told Committee members that in reading that document, it should be remembered that this opinion was arguing as to why floor-crossing was not needed and should not be allowed.

Adoption of Resolution
Adv de Lange asked if any of the members objected to the resolution requesting that the Committee consider the Loss or Retention of Membership of National and Provincial Legislatures Bill. No one objected.

In closing, Adv de Lange said it was important for people to remember that the Committee had not agreed to the Bill but had simply passed a resolution asking the House for permission to consider the Bill. Adv de Lange also asked the press, present today in numbers never before witnessed at a Justice meeting, to use their resources to disseminate the fact the Bill was up for public comment.