Status of Leader of the Opposition; Interim Constitution Provisions

Meeting report

JOINT CONSTITUTIONAL REVIEW COMMITTEE
10 March 2006
STATUS OF LEADER OF THE OPPOSITION; INTERIM CONSTITUTION PROVISIONS

Chairperson: Dr E Schoeman (ANC)

Documents handed out:
Department of Justice and Constitutional Development letter [please email [email protected]]
Legal Opinion

SUMMARY
The Committee had been asked to look into provisions of the Interim Constitution that remained in operation. A letter had been received from the Department of Justice indicating that the progress report on provisions of the Interim Constitution was still to be discussed within the Cabinet. The Committee awaited the decision of the Cabinet.

The Committee was provided with a legal opinion on the status of the Leader of the Opposition. Members questioned whether the Leader of the Opposition should be the leader of the largest opposition party, or representative of all opposition parties. More information was requested on the matter.

MINUTES
The Chairperson indicated that a strategic planning session had not been conducted in February due to the absence of Members of the National Council of Provinces (NCOP). It was hoped that forthcoming meetings would be fruitful and interesting. The Committee's mandate was to review the Constitution on an annual basis. Two referrals had been submitted to the Committee namely, provisions of the interim constitution that remained in operation and the status of the Leader of the Opposition.

Ms S Camerer (DA) reminded the Committee of requested inputs from various Departments on animal and wildlife protection.

The Chairperson responded that input would be forthcoming from the Portfolio Committee on Communications on the convergence of the electronic media and from the Department of Environmental Affairs and Tourism (DEAT) on animal rights.

Mr J Jeffrey (ANC) sought an explanation for the absence of Dr Delport (DA) from the meeting.

The Committee Secretary provided detail on the committee programme. DEAT would attend on the 17 March and a briefing from the Legal Division would take place on the 24 March.

The Chairperson stated that a visit to the Constitutional Court would occur in May and a report on submissions would be discussed on 9 June. A motivation was being formulated to facilitate a visit to the Federal Republic of Germany to study their review process. A letter had been received from the Department of Justice indicating that the progress report on provisions of the Interim Constitution was still to be discussed within the Cabinet. The Committee awaited the decision of the Cabinet. Members had to consider the referral from the Rules Committee of the status of the Leader of the Opposition.

Adv F Jenkins (Legal Office, Parliament) presented a legal opinion on the matter. He stated that the Constitution recognised the leader of the largest opposition party but no specific detail on how this should transpire existed. Section 57 of the Constitution guaranteed the participation of minority parties in the legislative process. The largest opposition party had to be recognised. The intention was to allow opposition politics to remain within the National Assembly. The impression had been created that the leader of the largest opposition party spoke for all opposition parties and that the leader in question enjoyed certain exaggerated privileges and status. Minority parties should be seen as separate from the largest opposition party. A Constitutional amendment to resolve the issue was not recommended. The matter should be addressed within the domain of the Rules of the National Assembly. The Rules Committee faced two options, namely to clarify ambiguities within Rule 21 of the National Assembly or rewrite a Constitutional provision that specified the role of the Leader of the Opposition. The matter should be deliberated within a particular forum created to resolve the issue.

The Chairperson declared that the Committee was entitled to its own considered opinion and had to make a recommendation as the matter had been referred to it for that purpose.

Ms Camerer agreed with the stated opinion that a Constitutional amendment should only be made in exceptional circumstances. She pointed out that she had not seen the relevant minutes from the Rules Committee and was of the opinion that all Members should study those before debating the issue. The legal opinion should be considered in relation to relevant documentation.

The Chair responded that the relevant minutes should have been circulated to all Members and would be corrected.

Mr Jeffrey declared that the National Assembly Rules contained certain contradictions. The Rules referred to the largest party not in government while the Constitution had a wider interpretation. He referred to a recent case in Kwazulu-Natal involving the DA and the IFP. The legal opinion did not specify which forum should deal with the issue. A crucial distinction existed between bi-party politics as opposed to a multi-party system. The Constitution confirmed the right of all parties to speak in all political debates.

Ms Camerer raised a point of order and asked that Members confine remarks to the legal opinion and not expand the debate by including other issues. She reiterated that access to the relevant minutes and Rules was required to enable a sound interrogation of the legal opinion.

The Chairperson retorted that Mr Jeffreys had made reference to Adv Jenkin's opinion and merely elaborated certain issues. Members should engage Adv Jenkins with questions at this point and a debate would commence at the next meeting. Relevant minutes of the Rules Committee would be circulated to all Members.

Mr Jeffreys noted that the National Assembly rules had been made available to all Members during the previous year. The Leader of the Opposition enjoyed a more prominent role within the Westminster system as opposed to a multi-party arrangement. Section 57(a), (b) and (c) related to the legal opinion but not Subsection (d).

Adv Beukman referred to a research document being prepared by the National Assembly Table Staff and asked whether Members could receive copies. A conflict prevailed between the Westminster system and a Constitutional state model and the challenge was to marry the two systems. He asked for examples of comparative studies completed.

Adv Jenkins agreed that Subsection (d) referred specifically to opposition politics while the remainder of the provisions dealt with multi-party issues. Despite the number of votes garnered, the largest party not in government would provide the Leader of the Opposition. He asked why the provision could not refer to the leader of the largest opposition party. The KwaZulu-Natal case would be studied to compare certain issues. Multi-party democracy remained a core principle of the Constitution and the protection of the opposition was paramount. A comparative perspective of other proportional representation systems would be completed to assist the process. The progress of the National Assembly research document would be determined.

Adv Gaum declared that the direct opposite of the position conveyed in paragraph 10 of the legal opinion could be argued, namely that other opposition parties could argue that appointing a leader of the opposition from the largest of the opposition parties flew in the face of multi-party democracy. Smaller parties could contend that the provision had the direct effect of reducing their status.

Ms Camerer asserted that paragraph 10 did advocate that all parties not in government should be recognised despite their particular proportion of the vote. She stated that a Constitutional amendment, if agreed to, could have an adverse impact on South Africa's international standing. The ruling party could be perceived as intolerant of opposition parties. Comparative research should focus on countries within the SADC region, such as Botswana, where the Leader of the Opposition enjoyed an elevated status within the political system.

Adv Gaum raised a point of order and asserted that Ms Camerer was asking Adv Jenkins to express a political opinion that he should not have to do.

The Chairperson stressed that Members input should be confined to questions at this stage as a debate would commence in the following meeting.

Ms Camerer retorted that Adv Jenkins did not require protection from ANC Members. She asked that relevant documentation to be circulated to Members contain minutes of the Rules Subcommittee.

The Chairperson stated that the necessary documentation would be forwarded to Members. He reaffirmed that any Member could raise points of order that would be evaluated in an impartial manner.

Adv Jenkins concurred that the opposite position to paragraph 10 could be argued but emphasised that the intention of Section 57 was not to harm multi-party democracy. A dilemma existed in that Subsection (d) made specific reference to the ‘opposition party’ whereas the remainder of the section referred to ‘multi-party democracy’. The Constitution should be interpreted in a holistic manner and provisions should not be seen to conflict with one another. The National Assembly Rules should categorically determine the meaning of the role of the opposition in Parliament without infringing upon the principle of multi-party democracy. A comparative study of Botswana could be of benefit as would any other pertinent information. The minutes of the Rules Subcommittee had not been adopted and therefore could not be circulated.

Mr Jeffrey noted that the reference to opposition parties "not in government" complicated the issue. The rules could be construed as being in conflict with the Constitution if smaller parties were marginalised from the role of opposition politics.

Adv Jenkins declared that the interpretation of the term "opposition" by the National Assembly Rules should not be regarded as definitive and the Rules could be amended. Rule 21 had the effect of removing parties in government from the sphere of opposition politics.

Ms Camerer noted that the spirit of the Constitution had to be taken into consideration when formulating rules. She reiterated that further opportunity be provided to Members to undertake additional study to enable debate on an equal basis.

The Chairperson advised Members that the relevant Rules committee minutes would be circulated and a debate on the matter would be held in one week.

Adv Gaum stated that a Constitutional amendment would be required to change the status of the Leader of the Opposition.

Adv Jenkins concurred that the underlying ethos of the Constitution remained the principle of multi-party democracy. All rules had to comply with this position. The rules would have to clearly indicate recognition of the largest opposition party. The status of minority parties would have to be protected.

The Chair stated that Adv Jenkins would provide further information on the matter in the following week.

The meeting was adjourned.