Provisions of Interim Constitution Still in Operation; Status of Leader of Opposition: discussion

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.