Review of public submissions by Constitutional Review Committee

Meeting report

Mr Clive Rubin submission: Constitutionality of 12^th Amendment
Mr Rubin’s proposal dealt with the Constitutionality of the 12th Amendment as he queried whether the amendment was properly passed because it required two-third majority which number was not present during the voting on the amendment.

Adv Z Adhikarie (State Legal Advisor) stated that this submission did not fall within the ambit of the Committee’s mandate because the submission related to parliamentary and not substantive law.

The Chairperson indicated that the Public Protector had been asked to investigate the issue and asked the Committee members to wait for the report of the Public Protector on the issue. He explained further that in some cases where there is a vote in the National Assembly, some of the voting gadgets do not work properly and the print-out may not capture some of the votes of the Members of Parliament (MPs) and the parliamentary officials would have to count some of the votes manually. He indicated further that Mr Rubin had queried the lack of signatures of the MPs who voted manually but according to the Chairperson, signatures were not required if the members presented themselves physically.

In reply to a committee member asking how the process can be regulated to prevent vote tampering by MPs, the Chairperson said that each MP had to record his or her presence at every session so parliamentary officials take count of the present slips so that where a vote takes place, they can check the presence of an MP against the votes cast. If a name appears in a vote whereas the MP had no present slip, it would trigger an investigation.

An ANC member indicated that he had read the Public Protector’s report and the report did not find any voting anomaly in their investigation.

Chemical Allied Association Submission
They expressed the view that Part A of Schedule 2 of the Constitution be amended. They had problems with the time frames for Environment Impact Assessments.

Adv Adhikarie submitted that since the National Environment Management Bill was already tabled before the NCOP, she suggested that this submission be directed to the Portfolio Committee on the Environment and Tourism.

Mr M Msizi (IFP) wanted to know whether the referral should be made to the Select Committee or Portfolio Committee because if the Bill is already before the Portfolio Committee, then the matter has past the stage of public submissions.

The Chairperson suggested a trace of the current stage of the Bill before a response is made to Chemical Allied Association.

Mr S Mokoena’s Submission
Adv Adhikarie informed the Committee that there were a number of proposals that had been made by Mr Mokoena and proposed that they deal with them all at the same time.

The first proposal was on Section 9 of the Constitution dealing with Right to Equality. Mr Mokoena was of the opinion that convicted criminals should not be treated equally with law abiding citizens. He said that the State should discriminate against a convicted person but not against a law abiding citizen. He wanted the S9 clause to read “the State may unfairly discriminate against convicted criminals”.

Adv Adhikarie informed the Committee that the Constitutional Court had dealt with this [August and Another v Electoral Commission and Others (CCT 8/99)] where Justice O’Regan expressed the view that past discrimination led to group patterns of discrimination which was the primary cause of the clause in line with international norms and Constitutional Principle II “Everyone shall enjoy all universally accepted fundamental rights, freedoms and civil liberties…”. She stated that Principle 2 is a key attribute of democracy which protected freedom and civil liberties which must be part of the Bill of Rights. Prisoner rights had been dealt with by the courts which stated that prisoners could not be unfairly discriminated against and that a prisoner’s right to vote was entrenched. She stated that while this was a matter for the Committee to consider, it was not advisable for the Committee to consider it favourably.

The next proposal mentioned by Mr Mokoena had to deal with Section 27(1)(a) Right to Healthcare.  He suggested that the clause should be re-phrased to include “The right to speedy medical attention in public hospitals”.

Adv Adhikarie was of the opinion that this was not a matter for constitutional review because the proposal related to oversight functions.

Mr Mokoena’s next proposal dealt with Section 28(1)(b) Rights of Children. He was of the opinion that there should be a correlative obligation on children to respect and obey their parents and elders.

Adv Adhikarie stated that children are vulnerable and are entitled to parental control and to place a correlative right on them is a contradiction and incapable of remedy because you cannot have any recourse against a child who is disrespectful.

Mr Mokoena’s next proposal related to Section 165(3): The section should be amended to state that the functioning of the courts will not be interfered with where appropriate, fair and proper decisions are made or taken. He stated that some Court decisions were unfair and felt that the section should be re-drafted to include “Court processes may be interfered with”.

Adv Adhikarie stated that this proposal infringed on the separation of powers doctrine and the issue of judicial independence should not be a matter open for consideration.

Mr Mokoena also made a proposal Section 176(3): This section should be amended to state that judges' salaries will not be reduced subject to a satisfactory, fair, proper lawful job performance.

Adv Adhikarie was of the opinion that this would erode the independence of the judiciary and the founding principles of the Constitution.

Mr Mokoena’s last proposal dealt with Section 180: The amended section will be made prescriptive by changing the words "may" into "must". This will compel Parliament to pass legislation that deals with the administration of justice in respect of the judiciary.

Adv Adhikarie stated that she did not understand what this proposal intended to achieve but stated that the use of ‘must’ would be too tenuous and difficult and she could find no merit to this proposal.

The Committee decided to deal separately with each of the submissions by Mr Mokoena.

On Section 9, Mr Watson agreed with the State Legal Advisor on her recommendations. He stated however that prisoners lost all their privileges while in jail and he could not comprehend why they should keep their right to vote.

Mr M Mokoena (NCOP, ANC) stated that there has been complaints by broader society that inmates enjoyed a lot of privileges but that this could not be dealt with by a constitutional amendment.

The Chairperson agreed with the comments of the members and suggested that S9 be left un-amended.

On the amendment of Section 27(1)(a), the Committee agreed that this was an issue of service delivery and should be referred to the relevant Committee.

On Section 28, Mr Msizi commented that the only people with rights were children. He cited the example of legal aid which allowed the Legal Aid Board to claim from parents who could afford the legal costs of their children and argued that when delinquents were involved, the right of the child should be limited.

Mr S Camerer (DA) said that the Constitution should not protect adults because adults were capable of protecting themselves. She stated further that she felt Mr Mokoena was misguided on what the constitutional review process was about.

Ms M Oliphant (ANC) questioned “who would protect whom” in a situation where both parent and child are delinquents.

The Chairperson suggested that the Committee should write to Mr Mokena to explain what the constitutional review process was about.

The Committee considered the proposals on Sections 165 and 176 laughable and rejected them in their entirety.

On Section 180, the Chairperson stated that perhaps Mr Mokoena wanted a positive affirmation from Section 180 but unfortunately that was not the way legislation was written.

An opposition member stated that Section 180 is an empowering clause and the word ‘must’ cannot be used.

The Chairperson suggested that recommendations of the Legal Advisor and the suggestions of the Committee members be adopted and correspondence be circulated among the MPs.

The meeting was adjourned.