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CONSTITUTIONAL REVIEW COMMITTEE
29 September 1998
PROGRAMME OF WORK
The co-chairperson, Mr W Hofmeyr, said that at this committee's first meeting it had been suggested that a sub-committee be set up to suggest process for the committee. He and the deputy chairperson had met and it was proposed that they start discussing proposal issues and then capture that in documents which would be circulated for comment.
The issues that needed consideration were:
1. How does the committee deal with proposals when they get them. How much time on proposals?
2. What is to be done with the submissions they already have?
3. Should this committee look at private members bills which amend the constitution?
4. Should the committee have a role in normal constitutional amendments?
Ms P de Lille (PAC) apologised for not being at the first meeting and asked how were they going to distinguish this committee from the Constitutional Affairs Portfolio Committee? She also asked if this committee was going to play a monitoring role ensuring that the constitution becomes a living document. Further she wanted to know what the role was of the technical group in Constitutional Affairs?
In response Mr Hofmeyr suggested that they should add a fifth point to the issues under consideration:
5. Other things we can do to bring life into the constitution.
Mr Smith said that their work programme could dictate the approach they adopt or the converse. The constitution must be reviewed on an annual basis; submissions should feed into a separate process. Thus should they meet only once a year or more regularly? He felt they should take their role seriously and meet more than once a year. If this committee was to drive amendments, it would have a substantial legislative role and would require a full-time committee with regular meetings.
Mr C Botha (NP) said that the Department of Constitutional Affairs only looks at the constitution as far as its line function. Other issues need to be looked at so the committee should be available throughout the year.
Mr Hofmeyr said that they could talk about a more extended role. He had originally thought the committee would convene at one time of the year, for example, August, when it would work hard. He pointed out that ministers had been put on this committee so it would be difficult to sit all year.
He continued that if they considered constitutional amendments, the role would be broader than envisaged. This needed to be discussed and a programme worked out. If the whole constitution were to be thrown open each year, justice would not be done to proposals. The committee could solicit comment but it should indicate priority attention to issues over the course of a number of years as each constitutional issue needed proper debate.
Ms de Lille wanted to know how to move forward and process submissions without political bias. Private member bills had a bad track record as they died in the committees. If good submissions on the constitution were wanted, they needed to educate the public. Public submissions need to be sifted through but could it be done in a non-political party way?
Mr Smith suggested a refinement of the Constitutional Assembly process which should be open. There should a sifting of the wheat from the chaff rather than preclude public input. Amendments would be quite substantial so the committee needed a general work programme.
Mr Hofmeyr suggested that in 1999 they advertise for submissions on the constitution with the focus on, for example, national/provincial relations for that year. They could identify issues for a couple of years in advance. Further they could look at these issues more broadly than the Constitutional Affairs Portfolio Committee and the Constitutional Review Committee most probably would not draft actual amendments. It would help to guide input if this committee had advance warning from the Constitutional Affairs Portfolio Committee what needed focussing on.
Mr Botha said that they would have to liaise with Constitutional Affairs on any proposals so it could be a lengthy process.
Mr Hofmeyr replied that this committee could not process all applications with equal seriousness. They would have to look at areas and interact with departments. He suggested a consensual, multi-year approach to focus on different interests.
Ms de Lille concurred that they should proceed on this basis.
Mr Hofmeyr said that he would like to contain the annual review in an intense period though it may not fit into August so then they would meet at other times.
Mr Smit once again questioned the committee's role. If its role was that of annual review, then the agenda items should be prioritised and a general overview of the constitution would be undertaken, checking the efficacy of certain provisions against what the drafters had had in mind. There must be interaction with the line ministries so those issues they identify can become agenda items.
Mr Hofmeyr said that they should solicit input from all spheres of government.
Ms de Lille said that they should look at international experience with regard to review committees.
Mr Hofmeyr said that he had discussed this with Valli Moosa and he would get a list of these.
He then moved on to the second item on the agenda:
What is to be done with the submissions they already have, with particular reference to the IFP submissions?
He said that the ANC felt that except for one or two submissions, the existing submissions did not have a lot of meat. He said that they would finalise a mandate in December and a report for the incoming committee would be drafted.
Rev Zondi (IFP) said that it was hoped that they could achieve the publishing of the submissions as a draft bill so all could view them and have public debate before the end of the life of this Parliament, that is, in view of time constraints.
Mr Hofmeyr said that his off-the-cuff response was that one way of doing it was to try and find a formula for the committee sitting for several days to look at the substance of the IFP's submissions. They would have to think about publishing it as a draft. It could be published as a private member's bill. This would commit it to serious debate before Parliament rises.
Ms de Lille said that once at bill stage, then one would have to look at it as a private member's bill. However in the past the private member's bills have been stopped in the committee stage.
Mr Hofmeyr thought that by and large they would debate and process more in that way with regard to substantive issues such as the national/provincial relationship - by not looking at drafting.
Mr Smith said that if review was being proposed, anything mooted would have to have a high degree of consensus. If one looks at a package of amendments, some are contentious, some are not. He asked if they could explore these ideas bilaterally. Items 3 and 4 on the agenda reflect on these debates and they needed to move on.
Mr Hofmeyr said that in discussions in the rules committee as to whether the review committee plays a role - there is no ANC position. They want to get debates beyond ad hoc amendments. He would encourage that they follow the rules committee process. The private members bill was not very helpful as it does not have much scope for debate. If we can make private members bill part of this process, it will be more productive.
Mr Smith said that time frame was an issue. He asked if private member's bills on the constitution could perhaps be referred to the CRC.
Mr Hofmeyr said that this would mean sitting in the first half of the year - the ANC would be open to that. However all parties would need to agree to that.
Mr Smith said that this might require a rules amendment.
Mr Hofmeyr asked what was the relationship between the Constitutional Affairs Portfolio Committee and the Constitutional Review Committee? One role is trying to create space for debate so as to develop consensus and the other role is also to process technical amendments. The ANC feels the two roles are separate.
Mr Botha asked Mr Hofmeyr to speak to Minster Valli Moosa.
Mr Hofmeyr replied that the Minster feels that this needs discussion and a final decision cannot be taken.
Mr Smith said that the Constitutional Development Department had four constitutional amendment bills - one bill contained clauses from whole executive. There is logic in that process - the line ministers identify the problem and fix it. The Constitutional Review Committee looks at it from legislative position. It is logical that that remains where it is.
Ms de Lille said that these functions must be separated. She saw the role of this committee to seek consensus around issues. It was a process of discussion around principles which allows development of the broader issue.
Mr Hofmeyr suggested that they talk bilaterally with the IFP.
Rev Zondi asked if the IFP could not abandon the submission but look at the principles underlying the submission and put them forward as suitable for broad-based discussion.
Mr Hofmeyr concurred that this would be useful.
Ms de Lille said that they could look at movement from private members bill with an option to appeal to the Constitutional Review Committee.
Mr Hofmeyr said that there is a suggestion that the private members bill be referred to the Constitutional Review Committee for proper discussion.
The last item on the agenda: breathing life into the constitution which is an important part of what we are trying to do. Playing a monitoring role around constitutional education may be one area. There is a need to structure the way we work to get interest in these issues.
Ms de Lille said that there is a perception that this constitution is removed from the majority of the people who do not understand how to make it work for them. An educational process should be encouraged.
Mr Smith warned against overlapping functions. The Ministry of Constitutional Affairs has a budget for education. If we prioritise some matters, we will get interest. - the principle of multi-party discussion can be revived. And one could look at educational supplements on issues.
Mr Hofmeyr agreed that that should be explored.
Mr Botha said they could have a theme for the year. A brief background would be given as to what was the issue.
The meeting was adjourned as a National Assembly plenary session was about to start.
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