RESPONSE TO QUESTIONS POSED BY
CHAIRPERSON AND MEMBERS OF THE STANDING COMMITTEE ON PRIVATE MEMBERS'
LEGISLATIVE PROPOSALS AND SPECIAL PETITIONS
STEVEN SWART ACDP MP
30 OCTOBER 2006
QUESTIONS: Where
else in the bill of rights is there an interpretation provision? Is our bill of
rights not based on the Universal Declaration of Human Rights? Does
international human rights law protect marriage? Are we not a constitutional
democracy and can we prescribe to the
ANSWER:
1. It is correct that the South African Bill of Rights has its origins in
international human rights law. See for example Constitutional Principle II of
the 1993 Constitution which provided that "Everyone shall enjoy all universally accepted fundamental
rights ..."
2. The institution of marriage is as a matter of fact explicitly protected in
several international human rights instruments. Art 16 of the Universal
Declaration of Human Rights, the very same instrument to which the question refers, states clearly:
"16.1 Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage, and at its
dissolution.
2. Marriage shall be entered into only with the free and full consent of the
intending spouses.
3. The family is the natural and fundamental group unit of society and is
entitled to protection by society and the State."
One may also refer to Art 23 of the International Covenant on Civil and
Political Rights, and Art 12 of the European Convention for the Protection of
Human Rights and Fundamental Freedoms, both of which provide more or less the
same, referring expressly to the right of men and women to marry. Note also the
express reference to the family.
3. So, the intention was indeed that our Bill of Rights should reflect
international human rights: The fact that there is nothing in the South African
Bill of Rights to protect marriage is therefore at the very least an oversight
which should be put right.
4. Should Parliament therefore amend the Bill of Rights to protect marriage, it
would only do what should have been included in the Bill of Rights in 1996 when
the Constitution was adopted.
5. The reason why we propose the inclusion of a definition is because it
represents a minimalist approach purely from a drafting point of view. We asked
ourselves the question what is the smallest amendment that would achieve the
purpose to protect marriage? And section 39 is
indeed the interpretation clause of the Bill of Rights. One
may look at any constitutional law text book - when they discuss section 39
they call it "Interpretation" (see eg De Waal and Currie The Bill of
Rights Handbook (2005) pp 145
and further). Section 39 reads as follows:
"39. (1) When interpreting the
Bill of Rights, a court,
tribunal of forum-
(a) must promote the values that underlie an open and democratic society based
on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.
(2) When interpreting any legislation,
and when developing the common law or customary law, every court,
tribunal or forum must promote the spirit, purport and objects of the Bill of
Rights. (3) The Bill of Rights does not deny the existence of any other rights
or freedoms that are recognised or conferred by
common law, customary law or legislation, to the extent that they are
consistent with the Bill." (Emphasis added.)
Three remarks: (1) What else is this if not an
interpretation provision? (2) Also note that the legislature quite directly and
unequivocally imposes duties here
on the courts on how to interpret the Bill of Rights. (3) The proposed
amendment would fit perfectly into the construction of section 39.
6. Of course, if the Committee does not agree with the minimalist approach
followed with the proposal, would it prefer the insertion of a completely new
clause elsewhere into the Bill of Rights with the explicit wording of one of
the above international human rights instruments? Then we also follow
international law much more closely. The institution of marriage in any case
deserves no less.
7. The Constitution also contains other interpretation provisions, such as
section 239 on definitions. As a matter of fact, every law made by
Parliament contains a definitions clause, which is nothing else than a
provision instructing everybody, including the courts, how to interpret the
law. These days laws even go further by including
explicit interpretation clauses in addition to the definitions clause -see eg section 3 of the Promotion of Equality and Prevention of
Unfair Discrimination Act 2000, section 2 of the Promotion of Access to
Information Act 2000 and the Labour Relations Act
1995.
8. Further to the question of whether Parliament is supposed to direct the
Court in its interpretation of the Constitution: Parliament's constitutional
function and responsibility is to determine the content of the Constitution,
and the function of the Court is to interpret and apply the Constitution as
handed down by Parliament. It is for this reason that we have had some twelve
constitutional amendments already.
9. Parliament may (and should!) decide that marriage needs constitutional
protection and amend the Constitution accordingly. That will then be the
Constitution that the Court must interpret and apply. That is exactly what the
Constitution itself intends and anticipates by section 74, which prescribes the
procedures that Parliament must follow to amend the Constitution.
10. Why Parliament determines the content of the Constitution? Because Parliament is the elected representative of the people.
The Republic is governed by the elected representatives of the people, and not
by the courts, irrespective of how much respect we have for them. If the
majority of the people want Parliament to protect marriage effectively, it
should act accordingly. Yes indeed, we are a democratic constitutional state,
not a state governed by judges. Indeed, it is for this reason that we have has some
twelve constitutional amendments already. Additionally, it is the reason why
the Court referred the Fourie matter back to
parliament - as the voice of the people.
11. There is thus no question as to Parliament's constitutional authority in
this matter. It rather boils down to Parliament's will to protect this
foundational and venerable institution of society effectively through a
constitutional amendment - and to bring it in line with international practice
of amending the constitution to protect marriage.
The main points are the following: (1) international law is actually on our
side on this issue, (2) the inclusion of an interpretation clause into any law,
including the Constitution, is standard drafting practice, and (3) Parliament
has full constitutional authority to adopt this amendment.
The relationship between Parliament and the
1. In its submission to
Parliament on the Civil Union Bill, the Marriage Alliance addressed the
relationship between Parliament and the Court and pointed out that it is
Parliament's function to determine the content of the Constitution, also by way
of amendments, and it is the Court's function to interpret and apply the
Constitution as handed down to it by Parliament. Constitutionally, there is no reason
for a so-called impasse between Parliament and the Court simply because
Parliament amends the Constitution.
2. When the Court struck down the floor-crossing legislation in 2002,
Parliament bypassed the Court's judgement with an
extensive amendment to the Constitution (see the 10 page addition to Schedule 6
of the Constitution). In that case it was not even for a matter of principle,
but for politically expedient reasons.
3. If Parliament adopts a constitutional amendment, all the Court has the
authority to do is to make sure that the amendment was adopted in accordance
with the procedures and majorities prescribed in section 74. The Court's
jurisdiction over this is dealt with in section 167(4)(d)
where it provides that the Court has exclusive jurisdiction to decide on the
constitutionality of any amendment to the Constitution. That provision does not
confer on the Court the authority to say it doesn't like the amendment, or
believes it takes away rights, or it is inconsistent with the right to equality,
and therefore to strike it down. That is the whole idea of Parliament's power
to amend the Constitution - it may, by adhering to the correct procedures, put
into or take away something from the Constitution that may in the eyes of some,
even the Court, be inconsistent with the rest of the Constitution (I do not
concede here that that is indeed the implication of our proposal - see
paragraphs 5 and 7). The Court is therefore only competent to determine whether
the proper procedures were followed and the right majorities were obtained in
the case of a particular amendment.
See paragraphs 11 and 12 of the UDM floor-crossing case:
" This case is not about the
merits or demerits of the
provisions of the disputed
legislation. That is a political
question and is of no concern
to this Court..."
"Amendments to the Constitution passed in accordance with the requirements
of s 74 of the Constitution...
become part of the
Constitution. Once part of the
Constitution, they cannot be challenged on the rounds of inconsistency with other provisions of the Constitution. The Constitution, as amended, must be read as a whole and its provisions must be interpreted
in harmony with one another.It follows
that there is little if any scope for challenging the constitutionality of amendments that are assed in accordance with
the prescribed procedures and majorities. "
The Court found in casu that the amendment of the Constitution in a
manner not contemplated or sanctioned by the constitution itself, was invalid.
The
4. Just to explain the legal position more clearly by referring again to the
floor-crossing legislation: While the Court was competent to strike down the
ordinary legislation for being inconsistent with the Constitution, it would
have been unable to strike down the amendment that followed, the reason being
that the prescribed procedures were indeed followed and the Court would have
had no other ground on which it could invalidate the amendment.
Can the Constitution be amended to take away rights? Constitutionally, as
explained, Parliament has the authority to do just that, provided it follows
the correct procedures. However. the
ACDP proposal does not take away rights. Firstly, we do not believe that to
reserve marriage for heterosexual couples takes away rights
from anybody else. Our Constitution does not protect freedom of sexual
orientation as a basic human right. It is not a right; it is only a around on
which unfair discrimination is prohibited. Secondly, if government had
adopted our proposal when we first submitted it, they could have amended the
Constitution before the 1st of December, with no rights being affected.
[ PMG Note: Footnotes not included ]