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JOINT CONSTITUTIONAL REVIEW COMMITTEE
24 June 2005
PRIORITISING CONSTITUTIONAL REVIEW SUBMISSIONS: DISCUSSION
Documents handed out:
The Committee considered the question of how submissions received had been handled in the past. The Foreign Affairs Portfolio Committee Secretary gave a brief account of the work of the previous Constitutional Review Committee. Members felt the consideration of past processes provided a helpful guide in expediting the work of the current Committee.
The Members agreed that a subcommittee should be set up to deal with constitutional submissions and to make recommendations to the Review Committee. The Subcommittee would be comprised of representatives from all Political Parties. They also agreed that review submissions would be submitted to the State Law Advisors for their opinions.
Mr E Kgopa (Foreign Affairs Portfolio Committee Secretary) gave a brief account of the work of the previous Constitutional Review Committees. Previous Review Committees had set up a subcommittee to deal with submissions on constitutional provisions and made recommendations to the full Committee.
He noted that the previous Joint Constitutional Review Committee had more Members than the current Committee as it included Cabinet Ministers. Despite the large membership of the Committee, there was a backlog on the submissions. The Annual Report of 2003 had been adopted without a quorum of the previous Committee.
The subcommittee would make recommendations, after which the Joint Constitutional Review would send these submissions to the National Assembly (NA) for consideration. Mr Kgopa told the Committee that in 2003, more than 35 submissions had been received. Therefore during 2002 and 2003, the Committee had received a large number of submissions. However, most of these submissions had not been responded to and that created a lot of apathy from the general public. The work of the Committee had been limited to recommending to the National Assembly. The NA was the only body qualified to ratify constitutional amendments.
The previous Review Committee had embarked on a public awareness campaign to inform the public about constitutional rights and constitutional review. The Constitutional Literacy Campaign was aimed at stimulating public interest and was spearheaded by the Department of Constitutional Affairs hoping to increase the number of submissions. However during 2004/05, it had become evident that the number of submissions received by the Committee were beginning to dropping to their lowest level ever.
Ms S Camerer (DA) wanted a report on the Constitutional Literacy Campaign to enable the Committee to evaluate the nature and extent of public interest in reviewing the Constitution. She expressed that the majority of South Africans were content with the current Constitution. She submitted that the public apathy could be attributed to the happiness of our people with the Constitution.
Ms Camerer also pointed out that most submissions were related to legislation rather than the Constitutional provisions in particular and did not warrant a Constitutional Review process.
Mr Smith (IFP) wanted to know why the submissions from the lobby groups were not responded to as this was a direct cause of current apathy. Mr Kgopa replied that the previous Committee could not focus on the submissions due to elections in 2004.
Mr Jeffrey raised the amendment contained in some of submissions relating to libraries that were taken away from provinces to the National sphere of government. Consultations should be held with the current Minister of Arts and Culture to ensure that powers of the Provinces were not taken away.
Mr Masutha (ANC) agreed with the view expressed by the DA, saying that the public seemed content with the current provisions of the Constitution. Society at large had a perception that constitutional amendments should be effected whenever there was a need to review the Constitution.
Ms Njobe (ANC) opposed the suggestion that apathy was attributed to the public being satisfied with the current constitutional provisions. People who were mostly satisfied with the constitution were the middle class. Especially rural people would not have the resources to tackle constitutional review and needed assistance from government.
Mr Smith supported her in this. The poor masses did not have the economic muscle to mount a constitutional challenge before our Parliament. Parliament had constitutional obligations to create awareness around the Constitutional Review process. The Chairperson also supported the view that public interest should be heightened in respect of the Constitutional Review process. The input of all Members was critical in identifying priority submissions on constitutional review.
The Chairperson believed that this Constitutional Review Committee was in a better position to make an early start to reviewing constitutional provisions. Members should also endeavour to stimulate public interest of the constitutional review process at provincial level.
Mr Smith also supported the view that a small subcommittee should be formed in order to assist the Review Committee. The main purpose of the subcommittee would be identify and evaluate if submissions were of constitutional or legislative nature. The subcommittee would also investigate if submissions were not dealt with either by legislation passed by Parliament or judicial decisions of the Constitutional Court.
The Chairperson highlighted the brief of the Constitutional Review Committee in the National Assembly Rules that all submissions should be considered and scrutinised. He was not in favour of making recommendations, but afforded Members an opportunity to express their opinions on the submissions.
Ms Camerer said that the issue of marriage raised in submissions by a community organisation had generated a lot of public interest. Where submissions on this were scrutinised, the Committee should consider them on the basis of a focused summary of the legislative and constitutional nature of the submissions. The focused summary would be drawn up by the subcommittee and would include the recommendations and relevance of the submissions in accordance with the brief of the Review Committee. The approach would lessen the burden of submissions before Parliament.
Mr Jeffrey agreed with the DA on summarising the key issues raised in the submissions but was perplexed at how the process of constitutional review would unfold. He cited an example of the submissions made by the Royal Bafokeng Tribe that related to traditional leaders. He asked whether the Committee would summon the attorneys of the Royal Bafokeng Tribe to make oral submissions.
He also wanted to know if the Committee was qualified to pronounce of the constitutionality of traditional and marriage issues. Instead, he proposed that certain issues arising from submissions should be referred to other relevant Committees and Departments including the State Law Advisors. The traditional leaders had made submissions pertaining to the reinstatement of the death penalty.
Mr Jeffrey warned that the Committee should not be used by lobby groups as a platform for mounting constitutional challenges beyond their power or authority. However, he understood the need for a platform for oral submissions was critical to expand on the written submissions. He further highlighted the issue of a focused summary of submissions in order to ensure a consolidated approach to submissions.
Mr Smith expressed the view that some submissions relating to marriage and death penalty were clearly contrary to our Constitution. Therefore he supported the view that the State Law Advisors be brought in to express their opinions over the effect of submissions on the Constitution and any related legislation.
Mr Masutha (ANC) expressed that indeed some issues arising from the submissions were in fact contrary to the Constitution or statutse. He referred to the issue of communal land rights on which Parliament had pronounced upon through legislation. Submissions should be streamlined into a common approach through a focused summary. There should be a line of function for some submissions that would eventually determine the referral of the issue to the relevant committee, department or National Assembly.
Mr Masutha also suggested that a procedure be established that would define the role of the Review Committee in dealing with decisions of the Constitutional Court. They needed to assess whether judicial decisions fell within the purview of the Constitutional Review Committee.
Mr Jeffrey commented that the primary purpose of the Review Committee was to review constitutional provisions and propose constitutional amendments. The Department of Justice and Constitutional Development was generally responsible for the processing of these amendments. However, he opposed the suggestion that decisions of the Constitutional Court be subject to review by the Committee. Parliament already had a mechanism of dealing with decisions of the Court through enacting legislation and making the requisite amendments in line with decisions of the Court.
Mr S Shiceka (ANC) echoed similar sentiments in support of a public awareness campaign on the constitutional review process. Parliament was constitutionally bound to inform the ordinary people as their elected representative. He also stressed the need to disseminate information regarding decisions of the Constitutional Court and submissions should be sent to constituency offices countrywide.
Ms Njobe opposed setting up a subcommittee as it would duplicate the Review Committee’s role. She submitted that the Review Committee had 23 Members and could handle the submissions and make recommendations.
Dr Mulder (FFP) supported the subcommittee as it would improve efficiency and its Members would be better placed to interact due to the small size of such a committee.
The Chairperson said he supported a focused approach that would identify the essence of particular submissions. Members agreed that a multiparty subcommittee should be set up to evaluate submissions and that the State Law Advisors should be requested to evaluate submissions and express an opinion.
The meeting was adjourned.
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