Selfe and de Lille Proposals on Presidential pardons: further deliberations & 4th Term programme

Meeting report

Chairperson’s opening remarks
The Chairperson announced that the meeting scheduled for 22 September would not take place as the majority of members would be attending the programme of their political parties.

He noted that a legal opinion was being obtained from Adv Mukesh Vassen on the constitutionality of certain issues before the Committee.

He also noted that the Committee was still waiting for comments from stakeholders relating to some of the private Members’ proposals. The Portfolio Committee on Women, Youth, Children and People with Disabilities had indicated that it would not be dealing with the issue but that it was not in support of the proposal of Hon Dudley to amend the Choice of Termination on Pregnancy legislation.

He reminded Members that the Subcommittee on Rules was considering amending the rules, particularly in relation to Section 235(a) of the Rules, and the outcome of that amendment would be very helpful to the Committee.

The issue of support staff was still not finalised, but was still under discussion.

Selfe and de Lille Proposals: President’s power to pardon
The Chairperson said since Hon Patricia de Lille had resigned from Parliament, the Committee could not, in terms of the Rules continue with her proposal, since it was limited to considering proposals by existing Members of Parliament. However, he thought it would be useful for this Committee to note its observations on the merits of the proposal in any event, so that it was finalised and could not be revived on a technicality.

The Chairperson recapped that Ms de Lille’s proposal intended to remove the President’s power to pardon from Section 84(2)(j) of the Constitution. However, the Committee had previously expressed the opinion that the arguments she had proposed were not sufficient to justify its removal.

Mr P Pretorius (DA) thought the document before the Committee was contradictory. Hon de Lille had said that the President’s powers to pardon flowed from the Constitution itself, and was not based on historical influence of the prerogative of the crown. However, Hon James Selfe, in his proposal, had said that the President’s power to pardon was rooted in the historical prerogative of the crown.

The Chairperson asked Members to focus on finalising the proposal of Hon de Lille alone

Ms J Kilian (COPE) asked whether this Committee had received anything in writing from the Portfolio Committee on Justice and Constitutional Development. She noted that the Rules obliged the Committee to make a decision ‘after considering the Member’s memorandum and the Portfolio Committee Report’. If the Committee had such a Report then she would be happy to make a decision, but if not, then she thought the Committee would need to get that report.

The Committee Secretary responded that the Committee had received the comments of that Portfolio Committee on e-mail, and she would request that it be put in a formal document. The Portfolio Committee on Justice and Constitutional Development had nothing to add to this Committee’s impressions.

Mr A Ainslie (ANC) proposed that the Committee should not proceed with the proposal, as the Committee was not satisfied that it had sufficient merit. He also noted that in terms of the Rules it was not possible to take the matter further, as outlined earlier.

This was seconded by Ms M Mdaka (ANC), and agreed to by the rest of the Committee.

The Committee turned to Hon Selfe’s proposal.

Mr Ainslie disagreed with Mr Pretorius’s remarks about the contradiction. Both of the proposals had agreed that the Presidential power to pardon flowed from the Constitution. However, whilst one proposal spoke of this power being rooted, the other spoke about it being based.

Mr N Fihla (ANC) said that Hon Selfe proposed regulation of the President’s exclusive power to pardon as set out in Section 84(2) of the Constitution, in order to prevent any abuse of the executive power to pardon. The Constitution was the supreme law of the country. Despite the fact that the President had apparently unfettered powers and could exercise his or her discretion as Head of State, it would still be possible to raise a Constitutional challenge should a pardon be granted in an unreasonable way. This Committee should recognise that there was no streamlining of functions currently, although it had been stated that there was consultation with the Minister before the ultimate decision was taken by the President.

Ms M Mdaka (ANC) stressed that that the Department of Justice and Constitutional Development received all applications for pardon. That department started off the process, including and up to the time when recommendations were made. The President would only then exercise his powers in making a final decision. This proposal could be regarded as addressing the administrative issues around pardon, but there was no need for duplication of the administrative support that was already in place in both the Department and the Ministry.

Mr Pretorius emphasised that this proposal did not want to take away the President’s power to pardon, but simply to regulate how it should be done, and to specify that certain actions must be taken by the President before coming to the decision. His understanding was that the Committee was in favour of the proposal going through to the next stage, where it would be thoroughly interrogated by the relevant Portfolio Committee. The committee had only superficially covered the substance of the bill. His party believed that it was desirable that this proposal should proceed to the relevant Committee for full discussion with all role players on the constitutionality of the proposal. He proposed that the Committee should approve that this proposal should carry on to the next stage.

The Chairperson advised that Section 235(3) of the rules only singled out referral to the Portfolio Committee in relation to the financial requirements. Section 235(5) gave the Committee three options: either to grant, not grant, or grant with conditions.

Ms Kilian said she read Section 235 differently. She read out the phrase commencing ‘….either the view that the legislative proposal warrants further investigation, but that it may have financial implications for the State that may be significant enough to affect its desirability, (in which case)  the Committee must refer the Member’s memorandum to the appropriate portfolio committee for its involvement.’ She said that this meant that if the proposal was likely to have significant financial implications for the State, this Committee must then consult with the relevant portfolio committee and ask it to report back.

Subsection (5) stated: ‘The committee may recommend that the proposed legislation be proceeded with, and it may express itself on the desirability of the principle of the proposal.’ The relevant word was not ‘must’, but ‘may’. The Committee ‘may’ also recommend that the Assembly approve the Member’s proposal in principle – and again, this was worded as ‘may’ and not ‘must’. The Committee could also recommend that permission be given to proceed, subject to conditions.

She summarised that this Committee could express its view or recommend that the private Member’s proposal be approved, but could also just recommend that another portfolio committee should look at the proposal, provided that certain conditions were met. She stressed that the Committee had a choice whether or not to express its views on the desirability of the proposal. The Committee could recommend that the matter be proceeded with, other than where it thought it would have financial implications, in which case it could first get a report on the financial impact in order to then decide whether to proceed with the matter.

Mr Pretorius said that he wished to clarify the position of the portfolio committee. Ms Kilian was correct in the referring of the matter to the portfolio committee at initial stage, in relation to the financial aspects, which had been done. Once the proposal passed from this Committee, it then went to the House, which would take the decision. If the House approved a report that the proposal must proceed, then the proposed bill would follow the normal route of any bill. In fact this Committee should now be referring the matter to the House for a decision.

Mr Ainslie thought that the matter had already been referred to the relevant portfolio committee. This Committee had therefore more or less covered what was required by the Rules. However, he agreed on the valid points raised about the substance of what was before the Committee. This proposal was not attempting to limit the President’s power to pardon, but was an attempt to create some kind of administrative framework within which that power should be exercised. In fact, it had been suggested that that framework already existed in the Department of Justice and Constitutional Development. If that was indeed the case, then this proposal was simply a duplication of what already existed. He wondered whether the Committee should get additional information on that particular aspect.

Ms Mdaka said that there had been consultation with the Portfolio Committee on Justice and Constitutional Development. Even if this Committee were to refer the proposals to another portfolio committee, it would still need first to take a stand. She thought that perhaps there was no need for legislation. Instead, it would be useful to enhance the oversight role of the Portfolio Committee on Justice and Constitutional Development, and that would address the need for a clear pardoning process that would be principled and consistent.

Mr Pretorius commented that Hon Ainslie was correct in that the proposal aimed to create a legislative framework within which the President must act. Although there might well be a framework at the moment, it existed in fact but not in law. This proposal was an attempt to write into law what was required of the President when he/she considered pardons. Although there might be systems within the Department of Justice and Constitutional Development when a pardon was considered, it was not prescribed in law, but remained within the discretion of the Department and the President whether the consultation took place. This proposal sought to make it obligatory for the President to follow certain steps before he finally considered a pardon.

The Chairperson gave some historical background to the proposal. This proposal was made following the outcry about Shabir Sheik possibly being pardoned by the President. There were complaints that the President’s power to pardon was based upon similar powers held by the British and other monarchies, whether or not this was correct. South Africa had previously had a provision, prior to the current Constitution, which allowed the President to pardon offenders. However, this Committee should look at what precedent it may wish to create, and whether it wished to regulate a discretion that was conferred on the President by the Constitution. He questioned whether, since that discretion had been granted, there had been any suggestion that the discretion had been wrongly exercised, and said that if this had not happened, then the Committee must consider whether there was a need to regulate the way in which that discretion was used. The Constitution vested trust in the President. This Committee should apply the correct principles, and not create laws based on individuals or the way in which they were perceived.

Mr Fihla added that before a President could pardon an individual who was in prison, it would be proper for him/her to have first consulted with the Minister of Correctional Services, and then the Minister of Justice and Constitutional Development, and to check that he was not doing anything unconstitutional. In fact, no unfettered power was given to the President.

Ms Kilian agreed that when considering the matter, it was necessary to look to the position and not the individual. She was concerned that this Committee was again getting into the substance of the matter, and was not applying its mind to the role of the Committee. This Committee should not go into substantive issues, such as the current mechanisms used before a pardon was granted. She understood that it was an emotive issue, but this Committee must look dispassionately at it. The Committee recognised that this proposal was not intending to amend the Constitution. In fact, even if it were, that would not prevent the Committee from looking at the matter. It must simply determine if there were financial implications for the State, and whether the Committee had received the necessary reports, and whether there were any other reasons to oppose the proposal. She believed that this Committee should at least table the proposal to the National Assembly, for a debate and possible referral to another committee. She was concerned that this Committee seemed to be denying all legislative proposals, and stressed that the Committee must recognise that there were differences of opinion, and there should be a debate on what the Head of State should do.

Ms Mdaka strongly disagreed with subjecting the President’s powers to legislation.

Ms Sosibo supported Hon Kilian’s view that this Constitution applied to any current or future President, from whatever political party. She agreed that a decision had to be taken on the principles.

Ms Sosibo proposed that the Committee should not agree that Hon Selfe’s legislative proposal should be allowed to proceed.

Ms P Mocumi (ANC) seconded that proposal.

Mr Pretorius raised an objection, and this was seconded by Ms Kilian. Mr Pretorius wished to record that he and his party accepted the decision of this Committee. However, he wished it to be recorded that both he and Hon Kilian were opposed to this Committee dwelling on any substantive matters. The Committee should limit its discussion and consideration to the technical aspects, as agreed to in the Committee’s document.

The Chairperson noted that the majority of five Members had voted not to approve that Hon Selfe’s legislative proposal proceed further, but the objections from Mr Pretorius (DA) and Ms Kilian (COPE) were noted.

Adoption of minutes
The minutes of the Committee meeting held on 8 September 2010 were approved and adopted, subject to technical amendments.

Mr Pretorius again commended the Committee Secretary on the excellent quality of the minutes.

Fourth Term Committee Programme
The Fourth Term Committee Programme (Draft 3) was approved and adopted.

The Chairperson thanked Members for their work in this term, and noted that the next meeting would be on 13 October. He wished Members all the best in their constituency period. He noted his concerns about the backlog and the need for this Committee to move faster in arriving at its decisions.

Ms Kilian thanked the Chairperson for arranging the early morning slot for meetings, which was allowing far more to be done.

The meeting was adjourned.