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In assessing whether Parliament facilitated a public participation process, the standard is one of reasonableness, and what is reasonable will depend on the particular facts, writes Elmien du Plessis.
On 15 November 2018, the Constitutional Review Committee adopted a report which recommended that Section 25 of the Constitution be amended "to make explicit that which is implicit in the Constitution".
The report ends off by stating that "[t]he committee attracted many South Africans to participate in the process", referring to the public hearings in the provinces, and the written and oral submissions received in Parliament.
The adoption of the report was challenged on the bases that it excluded certain written and oral submissions made to the committee, and that such exclusion is an infringement of Section 59 of the Constitution.
The Western Cape High Court dismissed an urgent application to suspend the decision taken by the Constitutional Review Committee to adopt the report. The exact reason(s) for the decisions must still be provided.
This whole engagement, however, did raise the question: what is the role of public participation in (pre-)law-making?
The committee's findings and recommendations are not a pre-requisite for the introduction of a constitutional amendment bill in terms of Section 74 of the Constitution but is still preferable and should ideally assist Parliament in making informed, evidence-based decisions.
While the findings are not legally binding, it is important in a functioning democracy that the research is done properly, reflecting on the variety of viewpoints, that the reports are written with depth and circumspection and include the variety of opinions, that the recommendations are sound and within the committee's mandate, and that when it is tabled, that Parliament takes it seriously.
Through the constitutional labyrinth of committees, other public forums and various dialogues, it is good to remember that our framework and our guidance remains the Constitution.
The public participation right is enshrined in Section 59 of the Constitution that requires the National Assembly to "facilitate public involvement in the legislative and other processes of the Assembly and its committees". Should the National Assembly fail to do so, Section 167(4)(e) enjoins the Constitutional Court to decide whether Parliament or the president has failed to fulfil a constitutional obligation.
The greater the impact of the proposed legislation, the greater the obligation to facilitate proper public participation.
This duty to facilitate public involvement has been challenged in a few cases. The New Clicks case described the requirement for participation as "a reasonable opportunity … offered to members of the public and all interested parties to know about the issues and to have an adequate say".
In assessing whether Parliament facilitated a public participation process, the standard is one of reasonableness, and what is reasonable will depend on the particular facts.
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Doctors for Life made it clear that "[p]ublic involvement … [is] of particular significance for members of groups that have been the victims of processes of historical silencing". To have the chance to speak, but also the chance to be listened to, enhances dignity. This process strengthens our democracy, as long as the public is afforded a reasonable chance of participating in the legislative process.
More recently, the Land Access Movement of South Africa (Lamosa), concerned with the poor facilitation of public participation by the National Council of Provinces during the process of passing the amendment the Restitution of Land Rights Act, approached the Constitutional Court to have the amendment act declared unconstitutional.
In grappling with the matter, the judgment made it clear that "South Africa's democracy contains both representative and participatory elements", implicating that the public has a right to participate in the legislative process and not just leave the legislation making to the elected parliamentarians. In fact, these two processes "support and buttress one another", and Parliament must also facilitate this process, as it is a constitutional right.
Meaningful public participation requires firstly that the legislature (whether national or provincial) must provide meaningful opportunities for public participation in the law-making process. Secondly, people must be able to take advantage and have the ability to make use of the opportunity. This includes building awareness on the issue, and giving the opportunity to participate "in a manner which may influence legislative decisions".
When the public make presentations, not every suggestion made must be adopted. In the Merofong Demarcation case it was said that "being involved does not mean that one's views must necessarily prevail". In other words, government is not bound by the views expressed, although, arguably it must be considered.
Courts accept that Parliament have the power to determine how participation will be facilitated and will limit its inquiry to the rules adopted for this purpose, the nature of the legislation, and the need and urgency for its adoption. In assessing whether Parliament facilitated public participation, the court will have regard to time constraints and potential expense, and the importance of the legislation and its impact on the public.
As with regards to the timeline (urgency), the Constitutional Court made it clear that a timeline is subordinate to the rights of the Constitution – in other words, a self-imposed hasty timeline cannot override proper public participation.
In Doctors for Life the court, while reluctant to interfere with the legislature's autonomy, remained aware of its duty to protect the rights of the public to participate in public affairs. The balance is struck by the standard of reasonableness.
The courts therefore always have to tread carefully between upholding the Constitution by ensuring that Parliament does not infringe on rights, and by ensuring that in the process, it does not interfere in the legislative process.
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It is for this reason that the courts are reluctant to interfere with any process of Parliament in the making of legislation, while the process is still ongoing.
The courts can assess the legislative process once a bill is signed by the president. A bill has no legal effect, and does not create rights, until it is enacted as a law.
Before an enactment, the president also has an opportunity to send the bill to the Constitutional Court to rule on the constitutionality of the bill. In the case of the possible Section 25 amendment, this would be preferable in order to ensure the constitutionality of the bill, thereby avoiding post-enactment drawn out litigation and ensuring legal certainty.
While a court will have to wait for a bill to thus be enacted before it can assess the process, this does not mean that Parliament can ignore its public participation obligations. Parliament will be wise to ensure that the participation is meaningful, because if not, it risks the bill (or the act) being declared unconstitutional, which means that the whole process will be started all over again. This is the constitutional obligation.
Even if a committee report may not be legally binding, and even if it is possible for a minister to introduce an amendment bill without it, good democratic principles require that Parliament consider and engage with a variety of views put on the table through well facilitated and meaningful public participation also on this level.
It makes for a strong, robust, deep democracy.
- Elmien du Plessis is associate professor in Law at the North-West University.
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