Role of Leader of Opposition; response to Public submissions on Constitutional Amendments

JOINT CONSTITUTIONAL REVIEW COMMITTEE
20 October 2006
ROLE OF LEADER OF OPPOSITION; RESPONSE TO PUBLIC SUBMISSIONS ON CONSTITUTIONAL AMENDMENTS

Chairperson: Dr E Schoeman (ANC)

Documents handed out:
Parliament Legal Services response to public submissions on Constitutional amendments
IDASA submission on floor crossing to Joint Constitutional Review Committee

SUMMARY
The Chair noted that the poor attendance by Joint Committee members was unsatisfactory. At a previous committee meeting, it had been recommended that smaller parties get together to submit a proposal on specifying more clearly the role of the Leader of the Opposition. No smaller parties were present at the meeting and no proposal had been submitted. As the matter had been dragging for nearly a year and it was important for the Committee to reach a consensus decision on it,  a deadline for a proposal by smaller opposition parties was set for 27 October 2006.

The Committee heard legal opinion by parliamentary legal advisors on submissions made by the public in response to an advertisement for public proposals for changes to the Constitution.

MINUTES
Role of Leader of Opposition
Dr J Delport (DA) suggested that the discussion on the Role of the Leader of the Opposition be struck from the committee agenda until the proposal by the smaller opposition parties is received.  This stemmed from a decision at a previous committee meeting for smaller opposition parties to present a proposal on the position of the leader of opposition.

Adv T Masutha (ANC) replied that the matter should not be struck from the agenda as it was not just a matter concerning opposition parties. He felt that the Committee had an obligation to apply its mind to the matter. What were the circumstances that led to the notion of specifying the role of the opposition leader in the Constitution?  When researching the methods of established democracies such as that of the United Kingdom, it must be understood that the multi-party system in the UK had only two to three parties. This Committee must also investigate models from other Commonwealth countries.

The Chair pointed out that Advocate F Jenkins of Parliament's Legal Services had completed a comparative study of other Commonwealth countries. To his knowledge, only New Guinea specified the role of the opposition leader in its constitution.

Adv F Jenkins replied that it was very seldom that one found this kind of protection in a constitution. It was covered in Section 178 of our Constitution. He explained that it was a policy issue and that the Rules Committee should look at this matter. It was also a constitutional matter that requires a two thirds majority vote which smaller parties do not have.

Mr L Joubert (DA) asked why this had been inserted into the Constitution?

Dr Delport replied that the idea had come about at the Kempton Park negotiations when the country had a National Unity government system.

Adv A Gaum (ANC) commented that the smaller parties must forward a proposal so the merits of the case could be discussed.

The Chair felt it was important for the Committee to reach consensus on the matter. A deadline for a proposal by smaller parties was set for Friday 27 October 2006.

Mr W Watson (DA) noted that this matter had been going for a year and must be finalised.

Adv Masutha clarified that first there was the issue of where the notion had originated. The second issue was the injunction in Section 57 of the Constitution. This Committee must look at the terms of reference from the Rules Committee. He cautioned that this Committee might be over-extending its mandate. He noted that it was the responsibility of the Committee to give full effect to the spirit of our Constitution. He asked what was the exact content of the right? This Committee had a constitutional mandate to review the Constitution. It must also establish how this notion advanced multi-party democracy.

The Chair explained that he had received a letter from the Joint Rules Committee for this Committee to investigate the notion and smaller parties must be given the opportunity to state their case. Next Friday the Committee would make a decision.

Adv Masutha made a procedural point by requesting that the Committee short-circuit the process by consulting with the public.

The Chair replied that the Committee did not have the budget for public consultation but that this could be debated soon.

Public submissions regarding proposed changes to Constitution: Response by parliamentary legal team as to the merits of submissions received
Advocate M Vassen from Parliament's Legal Services took the Committee through the legal opinions prepared in response to each public submission.

Response to the Catholic Institution of Education (CIE)
The Chair noted that all committee members agreed with Adv Vassen‘s view that ‘the petitioner incorrectly interpreted section 214(2)’. An amendment to section 100 was a matter of policy and therefore extended beyond the mandate of the Committee.

Response to Rand Water
The Chair confirmed that the proposal submitted by Rand Water was already captured in various sections of the Labour Relations Act.

Response to Mothuloe Attorneys, Notaries and Conveyancers
Adv Vassen explained that the issues in this submission extended beyond the mandate of this committee and may be referred to the Portfolio Committee on Justice and Constitutional Development.

Response to S Makoena
Adv Vassen explained that this submission dealt with the function of the Public Protector and expanding the role of the Public Protector. He also noted that this submission was far too broad and placed too much responsibility on the Public Protector. International best practices have been followed. The document as a whole dealt with Chapter 9 institutions and must be referred to the Ad Hoc Committee on the Review of the Chapter 9 Institutions.
 
The Chair commented that this Committee must not seem to be passing the buck. However, many of the submissions dealt with Chapter 9 institutions.

Response to Mr J H Fourie
The Chair explained that remedial action could not be avoided.

Response to the South African Human Rights Commission
Adv Vassen explained that the rights of people with disabilities is not within the scope of this Committee or the Ad Hoc Committee on the Review of the Chapter 9 Institutions as this issue was a matter of policy. The Joint Monitoring Committee on Youth, Children and People with Disabilities was a more appropriate body for this matter.

The Committee recommended that the matter be referred to that committee

Response to Mr T M Motsoeneng
The Chair commented that the submission proposed that the President be directly elected by the people and not by the National Assembly. Not within the scope of this committee.

Response to the Commission on Gender Equality
Adv Vassen commented that this submission was beyond the scope of this meeting. This was an issue of gender mainstreaming and was a policy issue stating that gender issues are not separate.

Response to IDASA
Adv Jenkins explained that the issue of floor-crossing was a matter of policy and that Mr J van der Merwe's (IFP) Memorandum and proposed Constitution Fifteenth Amendment Bill, a private member’s legislative proposal concerning floor-crossing, had been referred to the Standing Committee on Private Members’ Legislative Proposals and Special Petitions by the Speaker.

Response to Free State Legislature
Adv Jenkins commented that there were merits to this submission. The current formula was one seat for every 100 000. This formula allowed for representation.
 
The Chair recommended that a letter be written to all provinces to invite them to make inputs.

Response to Learners from Hendrik Verwoed High School
Adv Vassen explained that only the Public Protector had to be accessible in terms of the Constitution.

The Chair recommended that the matter be referred to the Ad Hoc Committee on the Review of the Chapter 9 Institutions. He affirmed that Chapter 9 institutions should be accessible to the public. Children’s rights were a priority. Race and gender had to be considered. He suggested that the Committee report back to the school to inform them that their submission did not deal with constitutional issues.

The meeting was adjourned.