Fifth Constitutional Amendment Bill: discussion

Meeting report

JOINT MEETING OF CONSTITUTIONAL AFFAIRS PORTFOLIO AND SELECT COMMITTEES
9 February 1999
FIFTH CONSTITUTIONAL AMENDMENT BILL: DISCUSSION

Documents handed out:
Written Comments on the Fifth Amendment Bill, received from the public and provincial legislatures (see Appendix)

SUMMARY
The Fifth Constitutional Amendment was discussed and members of the Department of Constitutional Development clarified the intent of the Amendment in various areas. The chairperson called for the formation of a subcommittee for further discussion on issues and objections to the Amendment. Membership and meeting times of the proposed subcommittee were to be arranged.

MINUTES
The Chairperson stated that the schedule for the Committee this session would be every Tuesday from 9-11am. Budget hearings would occur on the 23, 24, and 26 of February, and the budget would be debated in the Chamber on 5 March.

A member of the Department of Constitutional Development explained the Amendment’s different sections, and clarified clause 2 of the Amendment, which gives Parliament the opportunity to rectify problems in a Bill if it is found to be unconstitutional on procedural grounds. He stated that this was meant to apply to any Bill, not only to mixed Bills.

A committee member asked whether the Amendment removes the ability of the NCOP to introduce a mixed Bill, and whether this is not a curtailment of the rights of the Provinces.

The Department representative replied that the Amendment does preclude the NCOP from introducing a mixed Bill, but that this does not entail a curtailment of the rights of the Provinces. The reason the Amendment stipulates a mixed Bill must be introduced in the NA is that if at any point the Bill splits, they could face the situation of a Section 75 Bill having been introduced in the NCOP, which is not allowed.

Mr Eglin (DP) asked why the Amendment is needed anyway, given that under the terms used in the Constitution, the Section 76 classification is not restricted to Bills that cover only Provincial matters, but rather applies to anything that includes Provincial matters – so the Constitution really covers mixed Bills already.

The Chairperson replied that practical experience of Parliament over the last 4 ½ years necessitates something that addresses mixed Bills. It was also pointed out
that the joint rules say a Section 76 Bill is dictated not to apply to Section 75 issues, and vice versa, which illustrates the need for a way to deal with mixed Bills.

An MP from the NCOP raised her concern that Provincial problems addressed in the mixed Bill will be taken straight to the NA, and the NCOP would not get the chance to address them – the procedure called for by the Amendment takes power away from the Provinces by requiring that a mixed Bill be introduced in the NA.

Mr Eglin said his concern was that Section 76 has established a procedure to protect the Provinces, but under the terms of this Amendment a Bill that has even a single clause not relevant to Provinces becomes a mixed Bill. Therefore if anyone introducing a Bill wanted to exclude the Provinces, they could just tag on one other clause to make sure the Bill was introduced in the NA. Given that in his interpretation the Constitution already addresses mixed Bills, this Amendment should not be passed. He did recognize that procedural problems exist, but there are other ways to address those problems than through Constitutional Amendments.

The Chairperson said he feels that some MPs are making too much of a perceived erosion of Provincial powers.

Mr Moosa (NCOP Gauteng, ANC) said that when they drafted the Constitution and set up Sections 75 and 76, they did not foresee the complicated procedural problems it would cause. The point of the Joint Rules that were established as a way to try to deal with mixed Bills was actually to prevent the NCOP from getting the benefit of introducing anything that had any Provincial component. Mr Moosa stated that it would actually circumvent the Constitution for some types of joint Bills to be introduced in the NCOP, such as money Bills. And in any case, it would not help the NCOP for the Amendment not to be passed, because in the absence of a specific procedure something would go to the NA anyway, since it is the pre-eminent house.

An MP said that the Committee should remember the role of the NCOP as provided for in the Constitution, which is to represent the Provinces through the legislative process.

An NCOP MP said that her main concern is that people could use the Amendment to introduce Bills into the NA that should be introduced into the NCOP, and that is what has to be avoided.

Mr Moosa said he does not see how anyone can say that because if a Bill is a mixed Bill, it should be introduced into the NCOP – the Constitution never says a Bill must be introduced into the NCOP under certain circumstances, but it does say that certain Bills must be introduced in the NA; therefore this Amendment is not capable of taking power away from the Provinces.

The Chairperson said that in the absence of any new thoughts or comments the best idea would be to push the discussion forward through a subcommittee meeting of interested parties. He asked committee members to contact him if they were interested in participating.

Attendance:
24 MPs from the NA and NCOP attended the meeting, as well as three members of the Department of Constitutional Development, and Mr. V. Moosa (Minister of Provincial Affairs and Constitutional Development).

Appendix: Written Comments on the Fifth Amendment Bill, received from the public and provincial legislatures

Comments on Constitution of the Republic of South Africa

Fifth Amendment Bill 1998

This amendment is intended to deal with the problem of mixed bills. It does so by leaving Parliament free to prescribe whatever procedure it wishes in the joint rules and orders. Clause 2 determines the order that the Constitutional Court must give if a Bill is found to be invalid for procedural reasons.

Clause 1

There is clearly a need to determine a procedure for dealing with so-called mixed bills. Suggestions that such bills should be redrafted to separate out section 75 and 76 matters are unrealistic and, even when it is possible to do that, the outcome will mean a very untidy and inaccessible body of statutes. There seem to be only two other options. The first is the one adopted by this amendment. It is to amend the Constitution and to include a provision dealing expressly with mixed bills. The second option is to leave the Constitution as it is and simply develop a parliamentary procedure which captures the spirit of the present constitutional arrangements. I understand that a decision has been taken to deal with the matter by constitutional amendment in order to avoid any possible uncertainty in the future.

Although solving the problem by constitutional amendment is a completely acceptable solution, the approach adopted in clause 1 seems to me to be fundamentally flawed. This is because it would allow Parliament to circumvent the constitutional provisions protecting the integrity of the constitutional system of spheres of government. In addition, it may not do away with the uncertainty concerning the constitutionality of procedures.

The new section 76A(2) seems to allow Parliament to establish any procedure. It would, for instance, be possible for the joint rules to prescribe a procedure which gave the National Assembly the decisive say in all mixed bills, limiting the NCOP’s role significantly, perhaps to that of observer. The rules could certainly eliminate the requirement that a Bill vetoed by the NCOP needs a two-thirds majority in the National Assembly to become law, applying instead the section 75 requirement of a simple majority in such cases. An extreme interpretation of section 76A(2) might even permit the exclusion of the NCOP altogether. The suggestion that other ‘relevant’ sections of the Constitution should not influence the choice of process means that this interpretation is not entirely far fetched. Because it is not immediately clear what else ‘relevant sections’ refers to, the phrase may include those sections in chapter 3 protecting the integrity of the three-sphered system of government.

The NCOP plays a critical role in our system of government. Most provincial functions are imposed on provinces by national legislation. It is in the NCOP that provinces have an opportunity to resist inappropriate functions and, particularly, to ensure that their mandates are adequately funded. If the Constitution were to be amended in a way which would permit Parliament to pass legislation that affects provinces without giving provinces a real say in the legislation, the system would be undermined and could break down. For instance, as suggested above, Parliament would be free to adopt a procedure for mixed bills that diminished the role of the NCOP. Any issue that was likely to raise problems in the NCOP could then be introduced in a mixed bill and NCOP objections overcome because the procedure puts the balance of power in the National Assembly. In the case of a Parliament in which different parties hold the balance of power in the National Assembly and NCOP such a procedure might be desired by politicians.

This description of the possible use (or misuse) of the proposed amendment may be resisted on the basis that both the National Assembly and the NCOP participate in the joint rules committee. At present each house is equally represented in the committee. But this objection to my concern is not valid. First, the joint rules committee need not consist of equal representation from each house. Secondly, even if the committee does represent the houses equally, it could prescribe a procedure with the support of only one province.

A second objection to my submission that the proposed amendment threatens to undermine our system of spheres of government could be that the proposed amendment does not envisage joint rules that potentially undermine the constitutional framework. In other words, any procedures prescribed by the joint rules could be subject to constitutional challenge. As I have already mentioned, the words ‘ despite sections 75 and 76 and other relevant sections of the Constitution’ indicate that the amendment intends to insulate the procedure prescribed by the joint rules from constitutional review. But, if this objection to my submission is correct then it is not clear what the amendment achieves. It means that any solution proposed in the joint rules would still be subject to constitutional challenge for its compliance with the constitutional provisions that relate to spheres of government. In other words, the very uncertainty sought to be ended by this amendment would remain.

(Note: Proposed clause 76A(4) is not necessary. Both sections 77 and 76 make it clear that money bills could not be the type of Bill described in the proposed 76A(1). At present the Constitution avoids unnecessary repetition and I believe that this policy should be maintained. It not only helps keep the Constitution reader-friendly but, perhaps more importantly in this context, avoids the possibility of complicated arguments arising around the provision as lawyers seek to explain why it is included on the basis that every provision in a Constitution must have a specific purpose.)

Clause 2

Clause 2 of the proposed amendment intends to limit the kind of order that a court may make if it finds an Act of Parliament to be unconstitutional because of a procedural defect. At present, according to section 172 of the Constitution, a court can make ‘any order that is just and equitable’. Clause 2 removes this power and requires a court has found a procedural irregularity in an Act to allow Parliament to correct the defect, forbidding the court from immediately declaring the Act invalid. This provision seems to me both to be unnecessary and to be unacceptably far-reaching.

It is unnecessary because in most cases this is surely what a court would do in any event. Certainly, when the procedural defect is the result of the misapplication of a complex tagging mechanism and does not have immediate and irreversibly harmful consequences for any party, allowing the correction of the defect would be the appropriate remedy.

It is unacceptably far-reaching because procedural defects may be very much more serious than those anticipated in the context of mixed bills. For instance, the famous constitutional crisis of the 1950s dealt with procedural matters. In addition, a procedural matter might concern large scale voting-fraud in one chamber. In a Parliament with narrow majorities it would not be appropriate to suspend an order of invalidity in such a case. Similarly, a decision to tag a Bill ‘section 75’ rather than ‘section 76’ might allow the National Assembly to impose burdens on provinces which they would resist. When such a mistagging leads to a situation which conflicts with our system of co-operative government a court should be entitled to declare the legislation invalid.

Christina Murray

University of Cape Town

October 1998