Provisions of Interim Constitution Still in Operation; Status of Leader of Opposition: discussion
Constitutional Review Committee
23 June 2006
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Meeting report
JOINT CONSTITUTIONAL REVIEW COMMITTEE
23 June 2006
PROVISIONS OF INTERIM CONSTITUTION STILL IN OPERATION; STATUS OF LEADER OF
OPPOSITION: DISCUSSION
Chairperson: Dr E Schoeman (ANC)
Documents handed out:
Provisions of the
Interim Constitution that are still in operation
Department of
Justice response on provisions still in operation
Further research in
regard to comparative provisions for Leader of the Opposition
Notes on the
Constitutional Provision for the Leader of the Opposition
SUMMARY
The Committee accepted the measures taken by the Department of Justice and
Constitutional Development on the provisions of the Interim Constitution that
were still operational. The Department would set up a task team that would
investigate and prepare relevant legislation either to repeal it or to repeal
and re-enact it as new legislation.
The Committee had been asked to determine whether a change in the Constitution
was necessary to provide better clarity on the concept of the Leader of the
Opposition in Section 57. Some opposition Members were concerned that existing
provisions for the Leader of the Opposition appeared to bundle all opposition
parties under one umbrella. It suggested some kind of overall authority by the
leader of the largest opposition party over all other opposition parties and
this was problematic to them. While the Democratic Alliance, as the largest
opposition party, was satisfied with the provision, the Freedom Front Plus
pointed out that thirteen of the fifteen opposition parties represented in
Parliament were not happy with the concept and were prepared to use other
avenues should the Committee decide that there was no need to amend the
Constitution.
The parliamentary legal advisor's opinion was that there was no legal necessity
to amend the Constitution but that one could clarify the status of the Leader
of the Opposition in the Rules of the National Assembly. It was decided that
smaller parties could come with a submission that addressed whether the largest
opposition party should be recognised and whether the title had any purpose.
MINUTE
Provisions of the Interim Constitution that are still operational
The Committee was satisfied with the written response by the Department of
Justice and Constitutional Development. The Committee agreed with its decision
to set up a task team to investigate the provisions of the Interim Constitution
still in operation and prepare legislation to either repeal, or repeal and
re-enact as new legislation.
The Chairperson commented that the Committee could not accelerate the process
that had been set in motion. He was satisfied that the Committee had done
everything it could on the matter.
Feedback on the Leader of the Opposition
Adv F Jenkins, parliamentary legal advisor, reported that he had only come
across a reference to the “leader of the opposition” in the Fijian
Constitution. He felt that it was not necessary to amend the Constitution but
that the Rules of the National Assembly could be amended to reflect the status
of the largest opposition party.
Discussion
The Chairperson asked whether there was any conflict between the
Constitution and the Rules of the National Assembly. He asked if Adv Jenkins
thought that since there was a gap in the National Assembly (NA) Rules on the
issue of the Leader of the Opposition, it was necessary for these rules to be
made clearer.
Adv Jenkins replied that he believed there was no conflict between the
Constitution and the NA Rules. The response to the State of the Nation debate
and issues around representation in international delegations were some of the
debates that had led to the discussions on the status of Leader of the
Opposition. In order to address these concerns, the NA Rules could state what
the status of the largest opposition party (and not necessarily the status of
the Leader of the Opposition) was.
He felt that there was a lacuna in the legislation since it did not clearly
define what the entitlements and privileges of the Leader of the Opposition,
the largest opposition party and other opposition parties in Parliament were.
These had been debate since before 2004. The lacuna in the rules was subject to
one’s perspective. If the matter became a pressing issue it could be addressed
in the NA Rules.
The Chairperson requested Adv Jenkins to forward to the Committee the documents
he had consulted during his research.
When the Chairperson opened the floor for discussion, Mr C Mulder (FFP)
requested permission to express an opinion. The Chairperson explained that he
did not want the Committee to debate this matter without parties having had
sight of all the relevant information. Once better informed, parties could
present considered opinions during the next parliamentary session. He
emphasised that this was the best route to follow.
Ms S Camerer (DA) sought clarity on whether Adv Jenkins was of the opinion that
there was no need to change the Constitution but that any change could be
addressed in the NA Rules.
Adv Jenkins confirmed that he thought this to be the best way forward
from a legal perspective. As a legal professional one was trained that the
Constitution should not be amended for any eventuality. He added that that this
of course did not mean that constitutions could not be amended.
Dr Mulder said that he agreed with everything contained ion the
documents presented except the conclusion drawn in the ‘Notes on the
Constitutional Provision for the Leader of the Opposition’, which read that “
the constitution text does not lend itself to be construed as bundling all
opposition parties together subject to one leader of the opposition”.
Dr Mulder agreed that, if one accepted the concept of Leader of the
Opposition, provisions should then be
made in the NA Rules. In the current debate the title, “Leader of the
Opposition”, was the bone of contention. He understood the Chairperson’s
suggestion that parties should be given time to consider the issue, but said
that his party had already done this. He added that all political parties
probably already held a position and had some views regarding the issue.
He said that while from a legal point of view, the present formulation could
not be construed as bundling all opposition parties under the same umbrella,
the public and the media held a different opinion.
He continued that there were fifteen opposition parties who felt very strongly
about the issue. All these parties, except the Democratic Alliance and the
Inkatha Freedom Party, had met to discuss the matter. They unanimously resolved
that if the Committee did not address the issue, they would prefer to bring a
joint private members’ bill to try and amend the Constitution through this
avenue. In his opinion, parties had thought about the matter and their position
was quite clear. He added that the concept of the “leader of the opposition”
originated in the Westminster system. South Africa did not have such a system
but used the proportional representation multi-party system.
Mr J Jeffery (ANC) said that he was not quite sure what had informed Adv
Jenkins’ conclusion. The opinion preceding it was not very detailed and he felt
that there was nothing substantial that could substantiate it.
If one considered the literal meaning of “leader of the opposition” it
would imply some kind of collective status over other opposition parties. The
Constitution talked of the leader of the largest opposition party as the
“Leader”. There may have been a particular historical context that gave rise to
that wording but that context had passed. He wondered why the wording would
still be necessary.
He continued that the Committee was
considering whether the Constitution should be amended. Whether the NA
Rules should be amended was up to the Rules Committee. His personal opinion was
that amending the Constitution did not make much sense. If other opposition
parties had an opinion on this they should make a written submission to the
Committee.
He added that while there should definitely be some kind of recognition
of the largest opposition party, he was not sure whether the title “leader of
the opposition” was appropriate. It would have made more sense if the Leader of
the Opposition had at least coordinated the other parties, but this was not the
case.
The Chairperson agreed that if, as a group, the smaller parties could
come forward with a constructive suggestion then at least some headway could be
made. He reminded the Committee that its brief was to determine whether a
change in the Constitution was necessary.
Mr Jeffery added that the smaller parties should also discuss whether
the leader of the largest opposition party should enjoy any special status and
whether the term “leader of the opposition” was appropriate. If they felt that
this person should not enjoy any special status, they would presumably want a
re-wording as well.
Mr A Gaum (ANC) argued that amending the Constitution was seldom a
matter of legal necessity; an amendment was often informed by a set of
circumstances that had led to a political decision.
Adv Jenkins responded that this was exactly the scope he wanted to create. Most
legislation that was amended was amended because there was a conflict between
legislation. This was especially true in South Africa since it was moving from
one political system to another. The context made certain amendments part of a
political choice. If the political requirements were there, legislation was amended.
This applied to the Constitution too, for example, the floor crossing
provisions. The Constitution itself sometimes required that it be amended in a
certain way. He agreed that while from a legal perspective it might not be
necessary to amend the Constitution, if the political will was there, it could
absolutely be done.
He agreed that he had not sufficiently elaborated on his conclusion that
the constitutional text did not lend itself to be construed as a bundling
together of opposition parties. Looking “surgically” at the wording it spoke of
the “largest opposition party” and not the only opposition party. Where the
Constitution provided for the Judicial Service Commission there was a clear
reference that there was more than one opposition party. The Constitution did
not indicate that there was only one position of opposition. One could however
debate whether the title, Leader of the Opposition, was appropriate. He agreed
that even the media misunderstood the distinction. The Rules could be used to clarify
the confusion.
He explained that during his research he had asked himself how one would amend
the Constitution if it were to be amended. If one had to address the title, the
provision would read: “the leader of the largest opposition party in the assembly
and leader of the largest opposition party”- this was a rather strange
formulation.
One could also follow the Fijian example: appoint a collective leader of
all the opposition parties. This would transfer a mandate and thus would need
to be carefully considered. With such a provision, one would be moving towards
a bi-party system. This provision would not address the question of the title,
but rather the parliamentary system surrounding the official opposition.
Mr Joubert (DA) said that one had to remember that South Africa was a
developing democracy. There must have been a reason why ten years ago the
Constitution was written in the way it was. There were over 300 registered
political parties in the United Kingdom. About seven of these were represented
in that parliament. The opposition was represented under one umbrella. He did
not think that the matter could be thoroughly discussed at the present meeting
as there were many issues that needed to be considered.
The Chairperson said that he would give some leeway for members to
discuss the matter. The big issue related to the elevation of the leader of the
largest opposition party and whether it should be recognised in the
Constitution or in the Rules of the National Assembly. Of course the largest opposition
party would quite naturally think that this was necessary. The question around
whether it was necessary to amend the Constitution remained however. The
Committee would also need to grapple with why it was included in the
Constitution in the first place.
Mr Jeffery felt that it was about the recognition of the special status
of the leader of the largest opposition party. This was a common trend in
multi-party democracies: who ever led the largest opposition party got more in
terms of salary, staff, etc. He wondered whether there should not be a
provision providing for some kind of recognition of the leader of the largest
opposition party. As far as he was concerned the contradiction lay in the
title, which in his opinion had no meaning. It suggested some kind of overall
authority over other opposition parties and this was problematic. He said that
the discussion was useful and that smaller parties could come with a proposal
that addressed whether the largest opposition party should be recognised and
whether the title had any purpose.
The Chairperson agreed that the discussion had been useful. He would
like the matter to be resolved in a manner that reflected the intention not to
belittle or offend any party, nor to diminish anyone’s stature. The objective
was that if recognition should be given to the official leader of the largest
opposition party, the smaller parties should be able to live with it. He felt
that the Committee had enough initiative and resolve to find an acceptable
solution. He hoped that members would return from the constituency period, with
a solution that would be acceptable to all.
The meeting was adjourned.
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