Hon Speaker, all three arms of the state - the executive, Parliament and the judiciary - derive their authority and function from the Constitution of the Republic of South Africa. The Preamble categorically states that our Constitution, which is the supreme law of the Republic, is meant to, and I quote:
Heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights;
Lay the foundations for a democratic and open society in which government is based on the will of the people ...
Improve the quality of life of all citizens and free the potential of each person; and
Build a united and democratic South Africa able to take its rightful place as a sovereign state in the family of nations.
In its founding provisions, the Constitution further states that, and I quote:
The Republic of South Africa is one sovereign, democratic state founded on the following values:
a) Human dignity, the achievement of equality and the advancement of human rights and freedoms. b) Nonracialism and nonsexism. c) Supremacy of the Constitution and the rule of law. d) Universal adult suffrage ...
It is quite clear from this that the transformation of South African society is not only a political ideal that is pursued by individuals and organisations, but also a constitutional injunction for each and every one of us inside and outside of this august House. This is in fact what the liberation struggle was all about, and transformation remains our guiding principle in our quest to build a united and prosperous society.
Failure by any of the three arms of the state to pursue the noble goal of transforming our society into a united, democratic, nonracial, nonsexist, equal and just society would simply be against the letter and spirit of our Constitution.
The bottom line is this: It is the shared responsibility of all three arms of the state to work tirelessly for the advancement of the political, social and economic rights of all our people, as enshrined in our Constitution.
These include, but are not limited to the right to equality; the right to human dignity; the right to freedom of association; the right to vote and be voted for; the right to freedom of movement; the right to fair labour practices; the right to live in an environment that is not harmful to one's health and wellbeing; the right to property and land; the right to adequate housing; the right to health care services, food, water and social security; the right to basic and further education; and the right to use a language and participate in a cultural life of one's choice.
Section 27(2) of the Constitution states, and I quote:
The state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of each of these rights.
It is in the realisation of these rights that true transformation will be achieved in our country. I thank you. [Applause.]
Speaker, I thank the hon Deputy President for his reply. Would the Deputy President agree that the majority party, the African National Congress, has been at the forefront in guiding the nation to deal with the key challenges that face us as a new democracy - a democracy that needs to transform these arms of the state to accord with the vision of an united democratic, nonracial, nonsexist and just society? Would he agree that it is the leadership of the ANC that has ensured the separation of powers - a functioning executive and vibrant legislative arm, together with independence of the judiciary and the rule of law as the foundational values that underpin the democratic society? Thank you. [Applause.]
Speaker, yes, I do agree with hon Diale that the African National Congress has been playing a central role in upholding the Constitution of the Republic, as well as adhering to and in respecting the separation of powers and the rule of law. Thank you. [Applause.]
Following on your reply, Deputy President, I want to thank you for quoting the Constitution extensively in your reply. There is talk currently in the governing party, particularly around the issue of the Constitution. Some of this talk is about how bad and biased the Constitution is.
Is it your considered view that the Constitution, as it stands, outlines assigned powers and responsibilities to various executives? Is it your considered view that today, as you speak here, the Constitution, as adopted in 1996, is still correct and a Constitution that can guide our democracy forward, rather than this talk about amending the Constitution and changing the powers of the judiciary? In fact, if you have a different view, what are these judgements and why do you think the Constitution, in terms of the other executive power, which is the judiciary, is not giving the right ruling?
Hon Speaker, may I ask for your indulgence to allow the hon member to repeat the question because I did not get the essence of the question?
I am afraid I will not allow the member to repeat the question. We have a very tight timeframe. Maybe you might want to meet the Deputy President during the break. [Laughter.]
Hon Speaker, you can help me with the question.
Hon member, please repeat your question. Don't make a statement, just ask the question.
Speaker, currently there is an issue about the transformation and the review of the Constitution. Is it your considered view that the Constitution, as it is today, is still correct and that there is nothing wrong with the Constitution and with the powers that are assigned to various executives?
Speaker, quite frankly, I am not aware of any talk about reviewing the Constitution. I am only aware of what the Minister of Justice communicated yesterday, which is the reviewing of the judgments of the Constitutional Court, but I am not at all aware of any reviewing of the Constitution. The Constitution remains the supreme law of our country and we all owe allegiance to it. Thank you. [Applause.]
Speaker, one wonders about these types of questions and obviously one needs to get a type of platitude answer the question deserves. If we move away from the platitude, Mr Deputy President, the question I want to put to you is about the culture of democracy. We know what the Constitution states, we know the basics of constitutionalism, as we should, but how do we promote the culture of constitutionalism?
How do we prevent the Minister of Justice and Constitutional Development from issuing a discussion document in which he has an executive policy that speaks about judicial restraints, which is a shock to anyone who understands constitutionalism? How do we prevent the same Minister of Justice and Constitutional Development from discussing a scorecard on the activities of the Constitutional Court, because that is what it actually means? How do we prevent this type of constitutional deviation in the mindset when even the President here thinks we can talk about a media tribunal? How do we deal with issues like the banning of the Dalai Lama? Somebody is chirping in the background.
How do we justify the fact that tomorrow morning the Speaker and I will be locked in a courtroom and the Speaker and I, through a contingent of three lawyers flown in from Johannesburg, have to restate the right of Members of Parliament here to introduce legislation which each and every democratic Parliament has and which our Constitution gives and which our Rules have taken away?
There is a huge gap between the Constitution and the constitutional mindset, which has not developed. How do we bridge that, Mr Deputy President?
Speaker, culture by definition is a historical phenomenon and therefore the culture of constitutionalism will also be a historical phenomenon. There is only one way of entrenching constitutionalism. It is by education, education, education, and practice, practice, practice and drawing the requisite lessons from how we experience the Constitution itself.
Sometimes that will happen in a way of contestation. We should not be alarmed by that. As long as we do that within the framework of the Constitution, and as long as that leads to a better understanding and grasp of constitutionalism, that culture will take root. If we emphasise prevention, prevention, prevention and don't, don't, don't, then the Constitution will only be understood by the privileged few.
We want it to be rooted and we must create an environment in which it can be debated and understood because it is through that kind of education, practically, that it will be able to be rooted in the hearts and minds of our people. Thank you. [Applause.]
Speaker, the discussion document which was released by the hon Minister of Justice and Constitutional Development yesterday noted that the reasons for the assessment of the Constitutional Court rulings was to evaluate the court's decisions against a desired transformation landscape. In fact, Minister Radebe's statement yesterday further confirmed our fears in the Democratic Alliance that the government wishes to co-opt the judiciary into its political policy programme through the mechanism of co-operative governance. Constitutionally co-operative governance is limited to the three spheres of government - local government, provincial government and national government - and the judiciary should be left to interpret the law free from any political interference. My question: Is this the purpose of the review? Is the purpose of the review to render the judiciary an extension of their executive arm of government; and if so, how does the government reconcile this with the constitutionally enshrined principle of the separation of powers?
Speaker, no, that is not the intention. That is not the purpose of the review. I am sure that Minister Radebe will be able to answer that question. The separation of powers is what we accept, that the three arms of the state have separate powers and have to work in a co- operative fashion but independent of each other, in a manner that enhances and consolidates our democracy. None of these three is superior to the others. These are equal arms of the state.
The practice of constitutional review only serves to ensure that we comply with the prescripts of the Constitution. Parliament, in legislating, should comply. The executive, in adopting major policy, should also comply. That is the responsibility that is given to the judiciary. It does not therefore make them more senior, stronger or powerful than the other two.
If, as legislators, we craft legislation with the understanding that it must be within the framework of the Constitution, the Constitutional Court would not have the need to pronounce on that at all. It will simply certify that it is indeed in line with the Constitution. If, as the executive, we take a major policy decision, we ought to take the trouble to ensure that it complies with the Constitution.
The separation of powers is very clear. They should not be blurred. We have no intention of doing so. Thank you.