Principles to Consider in deliberations: presentation by Legal Expert
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AD HOC COMMITTEE ON THE REVIEW OF STATE INSTITUTIONS SUPPORTING
28 March 2007
PRINCIPLES TO CONSIDER IN DELIBERATIONS: PRESENTATION BY LEGAL EXPERT
Chairperson: Prof K Asmal (ANC)
Documents handed out
Terms of reference
Audio Recording of the Meeting
The Committee received a presentation by its legal and constitutional expert Prof Pierre de Vos. The presentation gave a brief outline of several principles the Committee might use as guidelines once it commenced its deliberations. Ensuring that the Chapter 9 and associated bodies maintained their independence was of central importance. The Committee’s deliberations would be guided by the terms of reference and the need to ensure the independence, accountability, dignity and affordability of the bodies. Issues related to appointment processes, as well as financial and administrative independence were some of the aspects to be looked at. The Chairperson highlighted that some of the gaps such as the ones related to the freedom of information legislation would have to be incorporated in the deliberations as well
Chairperson’s opening remarks
The Chairperson said that the Committee’s work had now reached a new stage. The Committee’s interactions with the Chapter 9 and associated bodies had been exciting, interesting, and insightful. He noted that the institutions interviewed had not been consistent in their submission of documentation and their responses. The Committee now had to deliberate what it thought was really happening within the bodies. He emphasised the need to scrutinise the scores of submissions the Committee had received. The Committee meetings had up till now had a number of journalists attending, but the future meetings would be closed.
Dr Leon Gabriel, Head of the Parliamentary Research Unit, had identified some key issues a few weeks earlier and Prof Pierre de Vos would assist in delineating some of the principles that would guide the Committee’s deliberations. No special treatment would be accorded to any one body.
Prof de Vos said that due to the short notice given to him, the report he would be giving should be seen as a draft and was still a work in progress. Using the terms of reference, the constitutional provisions and imperatives, as well as the remarks of the eleven bodies that had appeared before the Committee he had tried to distil some principles that would inform the Committee’s deliberations. The solutions of Committee should take cognisance of the notion of independence, which was set out in various sections of the Constitution.
He pointed out that different provisions dealt with different bodies differently. There were additional provisions that required the bodies to be impartial and to exercise their functions without fear, favour or prejudice. Other organs of state had to assist and protect these institutions so as to ensure their independence, impartiality, dignity and effectiveness. According to the Constitutional Court the actual requirement for independence and the structures to be put in place to ensure such independence could and should differ depending on the nature of the body.
The Constitutional Court had devised a test for what constituted independence as follows: From the objective standpoint of a reasonable and informed person, the question was whether the institution was perceived as enjoying the essential conditions of independence. Due to the diversity of society this perception had to be based on all relevant material information. The “reasonable person” would be a well-informed thoughtful observer (such as a Member of Parliament) rather than to a hypersensitive, cynical and suspicious person. A well-informed person would take complex social realities into account. He added that the Committee would also have to consider how the appointment procedure, security of tenure and financial and institutional independence related to the bodies’ actual mandate and the execution of that mandate.
The Constitutional Court, in the Langeberg Municipality case, had ruled that Chapter 9 institutions were organs of state but should not be seen as part of the Government. This was a very important principle and related to accountability.
Prof de Vos proceeded to unpack Section 181(3) of the Constitution. This said that organs of state, including the National Assembly, had the duty to ensure the independence, impartiality, dignity and effectiveness of the Chapter 9 bodies. He noted that the Constitution distinguished between independence and impartiality. Independence required more than the body acting impartially.
Organs of state, including the National Assembly, had to ensure the dignity of the Chapter 9 institutions. The Constitutional Court ruled that a person or a body could not be treated in a manner that suggested that it was not worthy of respect. The Committee would have to make sure that that principle was taken into account.
Prof de Vos then turned to certain aspects that related specifically to the Committee’s terms of reference.
The terms of reference required that the Committee review the “funding models of the institutions, including funding derived from transfers and licences and other fees, with a view to improve accountability, independence and efficiency”. This translated out to the institutions’ financial independence.
He reminded the Committee that in the New National Party case it was argued that Parliament, and not government or the Executive, had to provide for sufficient funding of the bodies. Judge Langa had accepted that there would inevitably be a tension between the government and Parliament on the one side, and the independent bodies in the interpretation of what was reasonable. Parties had a constitutional duty to resolve the matter in a reasonable manner so that both parties had to make a genuine attempt to understand each other’s needs and constraints and there had to be a mutual desire for a conclusion. It was assumed that the bodies would engage with one another in a way that would enable them to fulfil their constitutional duties.
The bodies reported various degrees of involvement of the executive, in the form of the National Assembly and National Treasury, in their administration. The Constitutional Court affirmed that Chapter 9 bodies could only be independent if they enjoyed administrative independence. There could not be any control of the matters directly associated with the functioning of the Chapter 9 and 10 bodies. Any operational control from the Executive would not be tenable and any measures aimed at removing control by the body over its day to day running would be problematic. The terms of reference required that the Committee review the “institutional governance arrangements in order to develop a model of internal accountability and efficiency”. This also had to be done in a manner that would not remove their day to day running from the bodies themselves.
The legal arrangements governing areas such as appointments and actual operations might also have to be revisited.
The Committee also had to review the “appropriateness of the appointment and employment arrangements for commissioners and their secretariats with a view to enhanced consistency, coherence, accountability and affordability”. This requirement could also be linked with the constitutional imperative on independence.
At the moment bodies showed no consistency in their mechanisms for appointment. Coherence differed from consistency in that it required some logic and order. At the moment some of the appointment processes were ad hoc. The Committee would have to decide whether there was perhaps a need for greater coherence in these processes. Affordability and accountability concerns would also have to be taken into account.
It was important to note that Section 103(6) of the Constitution provided for the involvement of civil society in the appointment of Chapter 9 bodies. Civil society already played a role due to its involvement in the nominations process. Should this role be enhanced, accountability would also be enhanced. This was not a requirement but was something the Committee would have to consider.
The Committee would also have to consider whether the various appointment procedures complied with the requirements for independence, while taking into account the coherence, consistency, accountability and affordability aspects.
Prof de Vos thought that the requirement that Chapter 9 bodies be accountable to the National Assembly was complicated because it could be interpreted in many ways. There was a difference between accountability and oversight. The former suggested that there was a hierarchy with one body accounting to the other. This then raised questions around what happened after the accounting process. He suggested that the Committee refer to the Corder report for guidance in this regard.
The Corder report spoke of the need for some sort of mechanism for remedial action. The Committee thus had to find a way of exercising their accountability without straying into a general oversight function that mirrored that of a portfolio committee. It was vital that the Committee understood the difference between accountability and oversight. As far as he was concerned an oversight role would affect the independence of the body. The terms of reference required that the Committee determine whether there was not a more structured oversight role for the National Assembly.
Section 181(3) of the Constitution spoke of state institutions like the National Assembly having to ensure the effectiveness of the institutions. Prof Asmal had also alerted him to Section 237, which stated that all constitutional obligations had to be performed diligently and without delay, so that all institutions had to be effective. The terms of reference spoke of the need to review whether the bodies were suitable to the South African environment, whether the consumption of resources could be justified in relation to their output and whether rationalisation was possible. All of these spoke to their effectiveness.
The Committee thus had to consider whether the work the bodies did was still relevant and suitable to the South African environment. Distinguishing between the two types of bodies would be very useful. It had to be asked whether the bodies charged with protecting and promoting human rights did so, and whether the work done by the bodies supporting democracy was still relevant. In addition the Committee had to consider whether the manner in which the bodies were structured and organised was relevant and ensured effectiveness.
If the Committee were to find that the internal organisation of the bodies was not effective, then amalgamation or amendments to the Constitution might have to be considered. He emphasised that the Committee would have to look at the bodies’ individual effectiveness as well as how well the string of bodies operated and whether they achieved what they were supposed to.
The terms of reference also required the Committee to consider how the coordination of work between the different bodies could be improved. The fact that many of these bodies did not cooperate in a very effective manner was raised in many of the interactions. The Committee would have to consider whether to propose mechanisms that would formally require the bodies to work together (within the limitations cast by the need for independence) or whether they would go for a more proactive and perhaps more radical approach.
Prof Asmal said that the funding principle should not violate the basic assumption of independence. He said that, having looked at all the relevant cases, it was very interesting to note that the New National Party case had different judgments but only one was emphasised. The different judgments also came to different conclusions. The funding system should enhance and protect the independence of the bodies. Parliament should play a role in this regard.
Dr Gabriel felt that Prof de Vos had covered the core principles. One also had to take into account that the principles did not stand alone, and there was much interaction and interplay between them. One of the more interesting discussions the Committee must have would centre around independence, accountability and oversight as well as the possibility of a collaborative relationship between Parliament and the bodies. The institutions were watchdog bodies too, and exercised some oversight over Government bodies, which in turn were accountable to Parliament.
Dr T Delport (DA) suggested that Prof de Vos should take a somewhat broader view of the concept of independence, which functionally had at least three facets. It was necessary to consider whether the law allowed the bodies to function independent of outside pressures and influence. Secondly, the question arose whether the body itself wanted to be independent and the staff distanced themselves from outside pressures and influence. Taking this argument to the extreme the Committee would have to determine whether some of the people involved were not agents of outside influence and pressure. This question related to the independence and the quality of appointees, which was very important. The third facet related to whether the public perceived the body as independent, which related to the composition and actions of the body.
Ms D Smuts (DA) commended the input of Dr Delport. She felt that it spoke directly to impartiality. It would have to be ensured that the appointment processes were appropriate. She added that she also felt that the Committee should consider the dismissal mechanisms.
Ms Smuts wondered whether Prof de Vos was referring to Section 55 of the Constitution when he referred to oversight and accountability. She asked whether he suggested that with respect to Constitutional institutions the parliamentary role was oversight rather than holding the institutions to account.
Prof de Vos indicated that that was not what he had suggested.
Ms Smuts felt that Section 55 could be almost be read as such. She said that Parliament had to assist the bodies and hold them to account.
Prof de Vos responded that the Chapter 9 bodies were in a special position. Section 181(5) specifically stated that they were accountable to the National Assembly. They were not in the same position as the other bodies over whom Parliament had an oversight function. When he used the term ‘accountable’ he referred to an accountability that was not akin to the day-to-day oversight and micromanagement by a Portfolio Committee. The National Assembly’s role was important but was limited so that it did not amount to micro management.
Ms Smuts appreciated the outline Prof de Vos had given. She wondered whether he could elaborate on the coherence and consistency aspects he had raised and whether he could supply her with the references.
Prof de Vos pointed out that the terms of reference required the Committee to look into the coherence and consistency of the bodies. There were no related court cases. He thought that if the Committee was taking the terms of reference seriously, these aspects should be incorporated in the principles guiding their deliberations.
Prof Asmal said that everything Members contributed would be considered. He asked what relevance Ms Smuts thought Section 55 of the Constitution had.
Ms Smuts said that there was no direct relevance. She had merely raised it because Prof de Vos had drawn a distinction between accountability and oversight, which also appeared in that section. She added that it was the subject of much of Hugh Corder’s report.
Ms J Matsomela (ANC) noted that the presentation had linked effectiveness to financial independence. She felt that this required the Committee to consider the efficiency of the bodies. The Auditor General performed this role already and she wondered how the Committee would perform this task without invading on what was already being done by the Auditor General.
Prof de Vos admitted that that was not an easy question to answer. He had tried to draw a distinction between efficiency, which looked to whether an institution was doing enough with the money it had as well as effectiveness, which required a consideration of whether the work the bodies did was effective.
Prof Asmal said that efficiency was one of the elements of effectiveness. He said that effectiveness related to what Portfolio Committees would do in considering whether departments had delivered on the objectives set out in their strategic plans. This Committee would have to assess the bodies’ deliverables based on the enabling legislation as well as the Constitution.
Mr J van der Merwe (IFP) said that the concept of independence gave him with many doubts and uncertainties. He struggled with the question of where the terrain of the independent judiciary was for instance. He asked where the terrain of the Department of Justice ended and where the independence of the judiciary began.
Prof de Vos said that the Constitutional Court’s jurisprudence and writing on independence had found that independence was an idea. Dr Delport had made reference to perceptions, which he thought was important. To achieve independence some structural mechanisms were necessary. There were also some intangible aspects to independence, which were rooted in many things including public perception. Independence was an amorphous concept.
Prof Asmal commented that independence was more than an idea and believed that it lay in the separation of powers. The separation of powers was partly determined by the Constitution and partly by the huge number of political disputes. The fundamental question was whether one arm was interfering with another to the extent that it affected its operation. There were gradations of independence and not everyone had the same degree of independence.
Dr Delport asked the Committee to consider who was more impartial – an American appointed by the republicans or the democrats. This had a direct bearing on perception of independence, which was linked to impartiality. In Germany the Chief Justice could become the Minister of Justice and the judges and magistrates were simply civil servants appointed by the State. Due to the State’s reputation and perception of non-interference no one complained that the courts were not independent. Independence varied from time to time and place to place.
Prof Asmal responded that each country and legal system had its own approach. The civil law system thought of judges as professional. He pointed out that for a long time Germany’s Constitutional Court was under siege because for 25 years it had no women judges. This was a political question. In addition the vast majority of the judges were also members of the Christian Democratic Union party, which was conservative. This raised questions around the body’s legitimacy. In France the highest body, the Council of State, was a politically appointed body. When the French Minister of Justice retired he or she usually joined the Council of State. The French recognised that in the end the decision would be affected by the premises on which the judges worked. South Africa functioned on the Anglo-Saxon system. He added that people changed when they came into certain positions of power.
Ms Smuts wondered whether it would not be useful to refer to the indices of independence as set out by the Constitutional Court in the certification judgment. Having used these tests herself she thought them valid and a useful guideline that referred to the appointment mechanism, the tenure, and financial and institutional independence. She saw no reason to depart from these as the basis for the Committee’s deliberations.
Prof Asmal pointed out that the set of indicators Ms Smuts referred to did not automatically apply to all the bodies.
Mr van der Merwe wondered whether the Committee could perhaps have a written copy of the presentation that included the additions made by Dr Gabriel.
Ms Smuts said that Prof Krish Govender, when speaking during the South African Human Rights Commission (SAHRC) presentation, had said that perhaps the Committee should not allow the range of checks and balances to be narrowed. She thought that to be a useful touchstone and worthy of consideration.
Prof Asmal noted that Chairperson of the SAHRC, Mr Jody Kollapen, had said something similar during the very first interaction between the bodies and the Committee, and had referred to bodies’ space for operation. The Committee had to consider whether the space was used effectively.
Concluding the open session of the meeting, Prof Asmal said that the Committee would start working on the principles in relation to the bodies. From 2 May it would consider how the principles applied to each body. These sessions would be closed.
The Committee was committed to looking at the effectiveness of the eleven bodies that had appeared before it. The report should strengthen the area, but not necessarily the body, that it was looking at in each instance. Freedom of information was one of the areas that had been identified as presenting a big gap and the Committee would consider it carefully. Issues relating to matters that affected disabled people would also have to be addressed. The Committee would look at alternatives to being obliged to resort to courts of law when rights were being violated or disregarded. One-stop information offices, where people could get assistance about where to go if they had complaints, would also feature on the agenda.
Ms Smuts commented that people tended to approach all members of parliament for assistance, whether or not their matters were appropriate. She did not think that it was MPs’ duty to create a one-stop shop for citizens.
Prof Asmal said that that was not what he suggested. He did not believe that members of Parliament should be messengers. Many members of Parliament gave their constituents the idea that when they assisted them in realising their rights they were doing them a favour, and he believed this was incorrect. He was merely pointing out that there were gaps that needed to be filled.
Mr van der Merwe said that he too received many requests from the public. It might be useful if Parliament issued a training document that would advise members of Parliament on how to refer some of these matters.
He added that the “indivisibility of human rights” had been referred to from the inception of the United Nations Declaration of Human Rights in 1948. This was a very important principle. There was a battle about economic and social rights. Judge Dennis Davis argued that these were not rights but political platforms. The argument was that one could not separate civil and political rights, and some political rights were social rights. The Committee would have to address this matter too.
The remaining proceedings were closed to the public.
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