ATC110603: Report on Study Tour to Venice Commission & Strasbourg

Constitutional Review Committee

Report of the Constitutional Review Committee on a study tour to the Venice Commission and Strasbourg, dated 3 June 2011. 

 

1.                   Introduction

 

The Constitutional Review Committee (CRC), had observed that it has not been aggressive in exploring, interrogating and exercising its functions during the first 12 years of South Africa’s constitutional implementation, as Parliament was busy adopting the necessary pieces of legislation, most of which were about major and complex reforms.  However, the CRC, in determining its role in this Fourth Parliament, has considered the legacy of its work during the first three Parliaments, as well as the mandate it has received from the Constitution in terms of which it is to review the Constitution annually.  In addition, since the new Parliament elected in 2009 has styled itself as an “activist”  parliament, the CRC had in its 2009-2014 Strategic Plan located its mandate within the context of an “activist “ Parliament that is driven by the ideals of exercising its constitutional powers in a manner that is effective and efficient. It is within this context that it sought to reposition its role so that it could be more effective.   

 

In realising its effort to bring its capacity on par with its critical task, the Committee identified various opportunities to enhance its knowledge and understanding by seeking assistance from institutions such as the Venice Commission (the Commission), which is perceived as the world’s think-tank and depository of knowledge, expertise and practical skills relating to constitutional matters.  The Commission is a consultative body which co-operates with member states of the Council of Europe and with other non-member states.  It is composed of independent experts in the field of law and political science.  The members are senior academics, particularly in the fields of constitutional or international law, supreme or constitutional court judges or members of national parliaments.  The Commission has 57 full member states which are all Council of Europe member states, one associate member state - Belarus, seven observer states, as well as South Africa and the Palestinian Authority (PNA), which have a special co-operation status similar to that of the observers.  The areas of the Commission’s activities include the following:

 

·                     To provide constitutional assistance, which takes form of opinions to states or other international organisations of bodies that have approached it for opinions in relation to draft constitutions or constitutional amendments.

·                     Identifying and developing standards in the area of elections through, amongst other things, codes of good practice on elections, referendums and on political parties.

·                     To provide amicus curiae briefs on comparative constitutional and international law issues.

·                     To give opinions on constitutional aspects of legislation relating to courts.

 

*          To co-operate with ombudspersons through opinions on legislation that governs their work. 

 

The Commission extended an invitation to the CRC to send a five-member delegation to its two-day plenary session, which was held at the Scuola Grande Dis Giovanni Evangelista in Venice on 15 and 16 October 2010. The delegation included the co-chairpersons; Adv SP Holomisa (NA) and Mr BA Mnguni (NCOP), Ms JE Sosibo (NA), Dr MG Oriani-Ambrosini (NA) and Ms M Smuts (NA). The other nine member delegation; Mr AR Ainslie (NA), Ms C Dikgale (NCOP), Mr MM Dikgacwi (NA), Mr N Koornhof (NA), Ms HF Matlanyane (NA), Ms BV Mncube (NCOP), Mr GT Snell (NA) and Mr SN Swart (NA) joined the five-member delegation for the exchange meetings in Strasbourg from 18-21 October 2010.  The delegation was accompanied by Ms P Jayiya, Committee Secretary; Mr M Dano, Committee Researcher, and Mr J van der Westhuizen, Committee Assistant.  The entire 14-member delegation held further engagements with members of the Secretariat of the Commission in Strasbourg.

 

 

2.                   Terms of Reference

 

The Committee sought:

 

·                                 to reposition the workings of the CRC in order to look beyond the mandatory process of the public submissions process and to learn from international best practices in that regard;

·                                 to develop a protocol of action and methodology of work that would assist in determining whether the Constitution required amendments and or modifications;

·                                 to check the different procedures which other member states follow when amending their constitutions; and

·                                 to establish whether there were African countries which were members of the Venice Commission.

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The issues dealt with during the engagement with the Commission related to the constitutional function and the mandate of the “activist” parliament.  Some areas of focus included the status of the implementation of second generation and socio- and economic rights, which should drive the transformation of the society; the accommodation of the institutions of traditional leadership within the democratic framework; and the performance of the system of provincial and local governments.  The CRC has also considered bringing within its fold the ongoing debate on whether or not the judicial system should have an apex court or whether there should be a twin peak system headed by courts with distinct areas of jurisdiction, as at the present time.  The CRC also alluded to the continued debate as to whether the property clause in the Constitution does not hamper land reform so as to address the legacy of colonialism and apartheid.   

 

The issues discussed with the Commission were on two phases: Firstly, the CRC needs to interpret the Constitution to determine what it requires of it, as the South African courts could not be called to interpret the relevant constitutional provisions as they do not provide advisory opinions.  Furthermore, there is at present no case or controversy with which a court can be seized.  Therefore, the Venice Commission would be uniquely qualified and positioned to assist in this regard.  Secondly, the CRC is of the view that if a “review” of the Constitution involves, not only assessing whether or not the Constitution requires amendment, but also its “health”- including the state of its implementation and its impact in society in respect of transformation - there would be a need to develop a new methodology for such purpose.  This methodology would have an enormous importance way beyond South Africa, as it could be used in other contexts in which constitutional democracy is undertaking the delicate process of consolidation within society.  In certain cases, such diagnostic methodology could prevent situations in which both the country concerned and the rest of the world suddenly wake up to a situation in which a constitution has failed, or is about to fail, in its intended democratic mission or policy of transformation.  The Commission would uniquely qualify and be positioned to undertake and develop this phase.  However, the second phase follows the completion of the first phase.  It will require a more intense co-operation between South Africa and the Commission, a relationship which would possibly be better suited to a time when South Africa acquires full membership in the Commission. 

 

3.                   Findings

 

The CRC feels that its mandate of reviewing the Constitution annually must take cognisance of the fact that its object is a document with which there is general satisfaction both domestically and internationally.  Therefore, the CRC is of the opinion that the review should only suggest amendments when necessary to improve such a document.  In addition, the review should also consider dispassionately the status of the implementation of South Africa’s Constitution and how much the wide gap between reality and legality is being bridged through the progressive implementation of the Constitution.

 

South Africa still enjoys a “special status” within the Venice Commission, originally due to it not qualifying for membership or observer status before the advent of democracy in 1994.This is an anomaly, as the Commission played a significant role, not only in the constitutional negotiations leading from apartheid to democracy, but also in assisting the Constitutional Assembly in formulating the final Constitutional of 1996.  The Commission further played a vital role in assisting the consolidation of South Africa’s democracy through its assistance to the Constitutional Court, as well as the creation of a forum in which African constitutional court justices meet to exchange professional experiences and foster constitutionalism throughout Africa.

 

The Commission had taken a decision in principle not to extend its membership beyond its current number.  Furthermore, the “observer status” was no longer available, but the Commission would gladly make an exception for South Africa.  This exception would be motivated, not only by the Commission’s long history of exchanges with South Africa, but also in consideration of the value the South African constitutional experience holds for many other countries, especially those on the African continent.  It was felt that the richness and uniqueness of the South African constitutional experience might add to the unique pool of knowledge and expertise gathered in the Venice Commission.  The membership fee for South Africa in the Venice Commission would be limited to Euro 21 000 per annum, subject to possible limited annual increases across the board.  The South African government would be responsible for identifying an extraordinary South African Constitutional Law expert, who would be required to attend the Venice Commission meetings in Venice four times a year, at South Africa’s expense.  Such expert, though, would be appointed by the South African government, and would be fully independent from it.  Once South Africa acquired membership of the Venice Commission, it would be able to request the Venice Commission to express advisory opinions and provide other assistance in respect of legislation or constitutional reforms, which the South African government might intend adopting, or other relevant legal matters.

 

The CRC is of the opinion that the inputs of, and the co-operation with, the Commission will enable the CRC to provide a much greater contribution to the consolidation of South Africa’s constitutional democracy and act as a political mechanism to the early detection of any constitutional shortcomings or threats to the fledging democracy.

 

 

The CRC received a briefing from Dr Sooklal, the South African Ambassador to the European Union (EU). This entailed a brief background on the European Parliament (EP), the EU Parliamentary Committee on Constitutional Affairs and its responsibilities, and the Delegation for Relations with South Africa. The Delegation entails formal inter-parliamentary relations between South Africa and the EU.  Interaction between the two Parliaments is also included in the SA-EU Strategic Partnership Joint Action Plan, which aims to enhance high-level political dialogue by institutionalising regular Parliamentary interaction.  The existence of the Delegation for Relations with South Africa provides a great opportunity to lobby for support on SA’s various issues of interest utilising the close relation that exists between the EP and South Africa.  The Delegation also provides a platform for South Africa to brief the EU and influence EU policy on issues of interest to South Africa.

 

In addition, the CRC met with Mr O’Boyle, the Registrar of the European Court of Human Rights.  He addressed the Committee on the European Convention on Human Rights and its importance in the protection of human rights and fundamental freedoms in Europe.  Furthermore, he updated the Committee on the establishment and activities of the European Court of Human Rights.  Information was given on the composition of the Court, and practice and procedure in relation to lodging applications, the registration and processing of cases, legal representation, publicity and access to information, the relationship with other courts, as well as the execution of judgments. The Committee was also informed about role of the Registry in the adjudication of cases lodged by individuals and how the Court dealt with backlogs.

 

The CRC also met with Mr Michael Cashman, the Chair of the Delegation, in the Office of Delegation for Relations with South Africa in the European Parliament in Strasbourg.  He registered his willingness to engage further with the CRC during his visit to Cape Town (South Africa) in 2011.

 

Furthermore, the CRC had an exchange of views with the Chairperson and members of the EU Parliamentary Committee on Constitutional Affairs.  The briefing was around the composition, functions and powers of the Committee.

 

 (4)       Conclusion

 

The study tour was an overall success and was a beneficial exercise in that it not only met the Committee’s expectations with regard to its mandate and core objectives, but was also an opportunity to study international best practices. The constructive engagement with the Venice Commission and the opportunities for further engagements provide fertile ground for effective and efficient constitutional reform. The Committee is now in a better position to consolidate on the work it has already started in grappling with its mandate, and to chart a way forward in outlining the path it seeks to take in following up on its programme of action. The Committee is buoyed by the constructive engagements with the Venice Commission and will shortly organise a workshop wherein concrete proposals on how best to pursue its mandate will be thrashed out.

 

(5)        Recommendation

 

The verbal invitation extended by the Venice Commission to South Africa to become a full member of the Commission should be conveyed to the Department of International Relations and Co-operation and the Department of Justice and Constitutional Development.

 

Report to be considered

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ADDENDUM

 

 

The Venice Commission held an exchange of views on a number of draft opinions with a view to their adoption.  The following is the synopsis of the engagements on the draft opinions and reports that were deliberated during the 84th plenary session. 

 

*     The Commission was invited to hold an exchange of views with Mr Akika Minashvilli and Mr Pavle Kublashvilli, Members of Parliament of Georgia, and to examine, with a view to adoption, the draft opinion on the draft constitutional law on changes and amendments to the Constitution of Georgia, drawn up on the basis of comments by Messrs Bartole, Scholsem and Sorensen and Ms Nussberger.  The Commission held an exchange of views and adopted the opinion on the draft constitutional law on changes and amendments to the Constitution of Georgia.

 

*     The Commission was invited to examine, with a view to adoption, the opinion on the draft law amending the law on judicial powers and the draft law amending the criminal procedure code of Bulgaria, drawn up on the basis of comments by Messrs Gstöhl, Hamilton and Jeremy McBride, an expert of the Directorate General of Legal Affairs and Human rights.  The Commission held an exchange of views with Ms Margarita Popova, Minister of Justice of Bulgaria, and adopted the opinion on the amendments to the draft Act on Forfeiture in favour of the state of illegally acquired assets in Bulgaria.  Furthermore, the Commission held an exchange of views with Mr Anastas Anastasov, Vice President of the National Assembly of Bulgaria, and decided at the request of the rapporteurs to postpone the examination of the draft opinion on the draft law amending the law on judicial powers and the draft law amending the criminal procedure code of Bulgaria. 

 

*     The Commission held an exchange of views with Mr Sadullah Ergin, Minister of Justice of Turkey, on the planned implementation of the constitutional referendum and the Commission’s role in this respect.

 

*     The Venice Commission was requested by the authorities of the Slovak Republic to prepare an opinion on the amendments adopted in 2009, to Act No. 270/1995 on the State Language of the Slovak Republic.  In January 2010, the working group travelled to the Slovak Republic in order to meet with the authorities as well as representatives of the minorities living in that country. 

 

*     The Commission held an exchange of views with Ms Másnohorská, Director- General for Global Challenges, Human Rights, International Organisations at the Ministry of Foreign Affairs of the Slovak Republic, and adopted the opinion on the Act on State Language of the Slovak Republic.            

 

*     The Commission held an exchange of views with Mr Yuriy Prytyka, Deputy Minister of Justice of Ukraine, and Mr Pylypenko, member of Parliament, and adopted the opinion on the law on the judicial system and the status of judges and the opinion on law on the prevention of abuse of the right to appeal, both prepared jointly with the Directorate General of Human Rights and Legal Affairs of the Council of Europe. In addition, the Commission adopted the joint opinion by the Venice Commission and Organisation for Security & Co-operation in Europe (OSCE) and Office for Democratic Institutions and Human Rights (ODIHR) on the draft law on Freedom of Assembly in Ukraine.

 

The Commission was informed of the request from the Monitoring Committee of the Parliamentary Assembly to prepare an opinion on the constitutional situation in Ukraine, following the recent decision of the Constitutional Court to declare unconstitutional the Law of Ukraine “On amendments of the Constitution in Ukraine” dated 8 December 2004 No 2222-IV due to violation of the constitutional procedures for its consideration and adoption.

 

Reports and studies

 

Report on individual access to Constitutional Justice

 

The Commission was invited to examine, with a view to adoption, the Report on individual access to Constitutional Justice.  The Commission postponed the examination of this report and invited all members to inform the Secretariat about the accuracy of the report, in relation to their own country, before 15 November 2010.

 

Draft Joint Guidelines on political parties by Organisation for Security & Co-operation in Europe (OSCE) and Office for Democratic Institutions and Human Rights (ODIHR)

 

The Commission adopted the joint OSCE/ODIHR Venice Commission Guidelines on Political Parties.

 

 Report on the role of the opposition parties

 

A report on the role of the opposition, prepared in response to the request of the Parliamentary Assembly, and drawn up on the basis of comments by Mr Sejersted, Ms Nussberger and Mr Özbudun following consideration by the Sub-Commission on Democratic Institutions, was also adopted.

 

 

Report of the Sub-Commission on Working Methods of the Venice Commission

 

The Commission was briefed on the results and conclusions of the meetings of the working group which met on 1 October 2010 and 14 October 2010 respectively.  The Commission adopted a set of proposals concerning the working methods, prepared by the Sub-Commission on procedural matters, to be implemented as of January 2011 and to be reassessed at regular intervals.  The Commission decided on the composition of the Scientific Council, the primary responsibility of which would be to contribute to the high quality and the consistency of the Commission’s studies and opinions.  The provisional composition of the Scientific Council would be as follows: Mr Helgensen, Mr Buquicchio, Ms Flanagan, Mr Paczolay, Mr Dimitrijevic, Mr Esanu, Mr Hoffmann-Riem, Mr van Dijk and Mr Jowell.

 

Draft Amicus Curiae Brief for the Constitutional Court of Bosnia and Herzegovina

 

The Commission was requested to examine, with a view to adoption of the above-mentioned brief in relation to a request of the Croat Caucus to the House of Peoples of the Parliamentary Assembly of Bosnia and Herzegovina for review of the constitutionality of certain provisions of the Electoral Law of Bosnia and Herzegovina, the Statute of the City of Mostar and the Amendment CIause to the Constitution of the Federation of Bosnia and Herzegovina.   The Commission adopted the Amicus Curiae Brief for the Constitutional Court of Bosnia and Herzegovina on the compatibility with international standards of certain provisions relating to local elections and the statute of the City of Mostar.

 

Draft Opinion on the Law on Public Assembly of Serbia

 

The Commission adopted the joint opinion by the Venice Commission and OSCE/ODIHR on the Law on Public Assembly of Serbia.

 

Interpretative Declaration to the Code of Good Practice in Electoral Matters on the participation in elections of people with disabilities

 

The Commission adopted the above mentioned on the basis of proposals from the European Co-ordination Forum for the Council of Europe Disability Action Plan 2006-2015.

 

In addition, the Commission adopted the report on the timeline and inventory of political criteria for assessing an election, previously adopted by the Council for Democratic Elections.

 

Amicus curiae for the Constitutional Court of the Former Yugoslav Republic of Macedonia

 

The Commission was informed about a request for an Amicus curiae brief by the Constitutional Court of the former Yugoslav Republic of Macedonia on amendments to the system of salaries and remuneration of elected and appointed officials.

 

Constitutional developments in Columbia

 

The Commission was briefed by Mr Mauricioa Gonzalez Cuervo, President of the Constitutional Court of Columbia, on the constitutional situation in that country and possible co-operation with the Commission. Mr Cuervo informed the Commission on the tension between the indigenous legal framework and the country’s legal system, and highlighted the need for possible assistance in harmonising these into a workable system