Principles to Consider in deliberations: presentation by Legal Expert
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Meeting report
AD HOC COMMITTEE ON THE REVIEW OF STATE INSTITUTIONS SUPPORTING
CONSTITUTIONAL DEMOCRACY
28 March 2007
PRINCIPLES TO CONSIDER IN DELIBERATIONS: PRESENTATION BY LEGAL EXPERT
Chairperson: Prof K Asmal (ANC)
Documents handed out
None
Relevant Documents
Terms of reference
Corder Report
Audio Recording of the Meeting
SUMMARY
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
MINUTES
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.
Discussion
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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