The Constitutional Court, in handing down judgement in Oriani-Ambrosini v Sisulu, held that Rules of the National Assembly which limited the right of any member of the Assembly to prepare and introduce legislation, "fly in the face of the meaning and purpose" of section 57 read with sections 55(1)(b) and 73(2) of the Constitution – and were therefore constitutionally invalid.
Section 55(1)(b) of the Constitution empowers the National Assembly to consider, pass, amend, reject and initiate or prepare legislation, whereas section 73(2) determines that a member of Cabinet, Deputy Minister, a member of the National Assembly or a committee of the Assembly, may introduce a Bill in the Assembly. The Rules of the National Assembly, however, required members to obtain permission from the Assembly before they could initiate and introduce legislation in terms of section 73(2). In terms of Rule 230, a member of the Assembly could only introduce a Bill if the Assembly had given "permission" to initiate such legislation. In turn, Rule 234 determined that, in order to obtain such permission, a member had to submit a memorandum to the Speaker explaining the particulars, objects and financial implications of the Bill, after which r the Speaker would have to refer the memorandum to the Committee on Private Members' Legislative Proposals and Special Petitions. The latter Committee, in terms of Rule 235, then had the duty to recommend to the Assembly that permission either be refused or given. Rule 236(1) then provided that the aforementioned Committee must consequently table the applying member's memorandum in the Assembly together with the Committee's recommendation and views of any relevant portfolio committee. Thereafter, the Speaker, in terms of Rule 236(2), would then place the matter on the Order Paper for decision. Only after the Assembly had voted in terms of Rules 236(3) and (4) to allow the proposal to proceed, would the member, in terms of Rule 237(1), be allowed to prepare a draft Bill in the manner and form prescribed by the Rules.
Section 57 of the Constitution does indeed empower the National Assembly to determine its own internal arrangements, proceedings, procedures, rules and orders concerning its business. The Constitution, however, requires the Assembly to make such rules with due regard to representative and participatory democracy, accountability, transparency and public involvement. The question before the Court was quite clearly whether the National Assembly, in terms of its own rules, could prevent members from preparing and introducing legislation by creating a permission requirement as a prerequisite. In handing down judgement, Chief Justice Mogoeng for the majority of the Court, was of the opinion that "common sense" suggested that a majority party was likely to support only its own legislative proposals. As such, any permission requirement prescribed by the Rules would inevitably become a "mechanism that is inescapably prone to denying individual members and minority parties the power to initiate, prepare and introduce legislation, however well-meaning those who drafted the Rules might have been".
At the outset, it may be difficult to grasp the importance of this ruling – either since individual members, in terms of the Constitution, have always had the right to introduce legislation; or, because the prospect of successfully having private legislation adopted once introduced (especially by a member of an opposition party),is virtually negligible. The Constitutional Court, in keeping with some of its previous benchmark judgements, nevertheless, considered this right in context of its purpose and crucial function within a multi-party democracy, rather than within the framework of the practical likelihood of the success of such legislation.
In the matter before the Court, Mr Mario Oriani-Ambrosini, a member of Inkatha Freedom Party (IFP) and member of the National Assembly, wanted to introduce, in terms of section 73(2) of the Constitution, a private Bill in the National Assembly. The Speaker refused him permission to introduce the Bill since, according to the Speaker, Mr Oriani-Ambrosini had failed to seek permission as required by the aforementioned Rules. Mr Oriani-Ambrosini, after failing to convince the Speaker of the unconstitutionality of the process and relevant Rules, brought an application in the Western Cape High Court challenging the constitutionality of the Rules in question. The High Court dismissed his application after which he applied to the Constitutional Court for leave to appeal against the judgment.
In order to determine the scope of the Rules in question, the Court interpreted sections 55(1)(b), 73(2) and 57 of the Constitution in terms of the values underlying our constitutional democracy –accountability, responsiveness and openness. Moreover, it revisited the meaning and importance of representative and participatory democracy as key elements comprising a multi-party democracy.
Hence, in considering the textual meaning of section 55(1)(b), Chief Justice Mogoeng held that the National Assembly did not necessarily have to act as a collective in terms of this provision of the Constitution. He based this interpretation on the very nature of the acts of "initiation" and "preparation" as acts which would require the initiative or interventions of individual members or groups of individuals – rather than the Assembly as a collective. The Court, however, more importantly then turned to the purposive meaning of section 55(1)(b). In context of our constitutional values and principles and relying on its previous pronouncements in the UDM-case, Doctors for Live-matter, Rail Commuters Action Group-case and the Matatiele-judgement, the Court found that "[a] construction [of section 55(1)(b)] that also recognises an individual competence to initiate or prepare legislation not only accords with the textual meaning of the section but also with the principles of multi-party democracy, representative and participatory democracy, responsiveness, accountability and openness". The Court was hence of the opinion that representative and participatory democracy, as principles underlying our multi-party democracy, can only be achieved if elected representatives can continuously participate in actions and decisions that affect the lives of their constituencies. Chief Justice Mogoeng therefore found that the powers in terms of section 55(1)(b) to "sponsor or pilot a legislative proposal" extended to all individual members of the Assembly – even from an opposition party – and could not "inadvertently or deliberately, be rendered hollow and inconsequential for those individual members of who may wish to exercise it". No rule created by the Assembly may consequently prevent any individual member from initiating and preparing legislation in terms of this constitutional provision.
The Court thereafter dealt with section 73(2) – the provision allowing for the introduction of legislation in the National Assembly. According to Chief Justice Mogoeng, this section clearly empowered any member of the National Assembly to carry out the function of introducing a Bill – a power the National Assembly was not at liberty to limit by means of its Rules. The Court was hence of the opinion that it was important not to restrict the power to introduce legislation without good reason – regardless of whether or not such introduced legislation would eventually be adopted as an Act of Parliament. This power, according to the Court, was "vital to the type of democracy envisaged by our Constitution" as it "facilitates meaningful deliberations on the significance and potential benefits of the proposed legislation". It regarded this power as significant and not merely of ceremonial value.
In explaining this view, Chief Justice Mogoeng contended that this power provided the opportunity, especially to members from opposition parties, to "go beyond merely opposing, to proposing constructively, in a national forum, another way of doing things". It moreover served as an "avenue for articulating positions, through public debate and consideration of alternative proposals, on how a particular issue can be addressed or regulated differently and arguably better". Relying on the values of participatory democracy, openness, accountability and transparency as well as the importance of promoting these values, the Court emphasized the fact that, once legislation was formally introduced, it formed part of the permanent and searchable records of the National Assembly, which apart from formally preserving proposals, would also allow access to the public and electorate.
Finally, the Court dealt with section 57 and the power of the National Assembly to make its own rules concerning its business. In this regard the Court noted that this power must be exercised with due regard to representative and participatory democracy, accountability, transparency and public involvement, but also the right of minority parties to participate in the proceedings of the Assembly and its committees in a manner consistent with democracy. The Court was firm in its assertion that representative and participatory democracy required that a "genuine platform be created, even for members of minority parties in the Assembly, to give practical expression to the aspirations of their constituencies by playing a more meaningful role in the law-making processes." As such, Rules made in terms of section 57 must allow for all members, including minority party members who are not ordinarily represented in Cabinet, to initiate and prepare legislation and introduce legislation. Any other interpretation of section 57 would be inappropriate as it would allow the Assembly to make rules that undermine or vitiate the power of an individual member to initiate or prepare legislation and introduce a Bill. The Court therefore found that the Assembly was not at liberty to impose substantive or content-based limitations on the constitutional powers of its members, but at best adopt rules that were procedural in nature.
Based on its interpretation of sections 55(1)(b) and 73(2) of the Constitution, the Court held that the Rules of the National Assembly had to recognise and facilitate the rights of individual members as enshrined in the Constitution. The Rules in question, however, restricted the right of members to initiate, prepare and introduce legislation as it created a permission requirement which limited this right in a manner inconsistent with the Constitution. The Court found Rules 234, 235, 235A and 236 to be inconsistent with the Constitution. It also ordered these rules severed in their entirety. It furthermore declared certain parts of Rules 230(1), 230 (2), 237(1), and 243(3) (referring to individual members and their need to secure prior approval from the National Assembly for introducing legislation) as unconstitutional.
The ability of individual members of both minority and majority parties to introduce legislation without the permission of the majority of the National Assembly – and thus the ruling party, goes to the heart of our multi-party democracy. In this regard, the Court remarked in a dictum of greatest importance to our understanding of a multi-party democracy, that: "[o]urs is a constitutional democracy that is designed to ensure that the voiceless are heard, and that even those of us who would, given a choice, have preferred not to entertain the views of the marginalised or the powerless minorities, listen."
The commitment to our constitutional values of accountability, responsiveness and openness dictates that our multi-party democracy is not only based on representation, but also on participation. In this regard, Parliament and its National Assembly have a constitutional responsibility to promote representative and participatory democracy. They must accordingly – in a manner that is both reasonable and rational – provide a platform for public audience and debate and hold the National Executive accountable for its decisions, actions and inactions. The Court fittingly observed that the "very nature and composition of the National Assembly renders it pre-eminently suited to fulfil the role of a national forum at which even individual members may initiate, prepare and present legislative proposals to be considered publicly by all the representatives of the people present in the Assembly".
However, the ruling party may indeed believe that any other view but theirs is of lesser importance or, in some instances, of no importance at all. The President's recent remarks in the National Assembly aimed at the official opposition go a long way in supporting this argument:
"Sorry, we have more rights here because we are a majority. You have fewer rights because you are a minority. Absolutely, that’s how democracy works. So, it is a question of accepting the rules within democracy and you must operate in them."
Legislative priorities and the degree and vigour with which oversight are effected by parliaments are predominantly determined by the ruling party. This is no different in South Africa. As was evident with the Protection of State Information Bill-debacle, the view of the ruling party may, for various reasons, not necessarily correspond to the best interests or will of the electorate. John Steward Mills in this regard asserted that the greatest potential perils to the effective functioning of a parliament were, on the one hand, general ignorance, incapacity or incompetence of representatives, especially within the ruling majority; and on the other, the danger of representatives and Parliament itself "being under the influence of interests not identical with the general welfare of the community" – leading to class legislation and decisions on the part of the numerical majority.
The Court in this case held that it was "a collective responsibility of both the majority and minority parties and their individual members to deliberate critically and seriously on legislative proposals and other matters of national importance". It is thus not the sole right of the majority party to initiate legislative proposals or identify matters of national importance. The majority party also does not have more rights than any minority party, regardless of what the President would like to believe. This is not to say that, in line with the principles of democracy, the majority party would not maintain the ability to exercise it majority to outvote an idea or proposal. It does however, mean that the "rights of all to be heard and have their views considered" must be respected by all – especially the majority party. For that reason, any member of the National Assembly must enjoy – without hindrance – the opportunity to introduce and promote their ideas and legislative proposals and identify matters of national interest. It is also the constitutional duty of Parliament to properly consider all such proposals – even when introduced by an opposition party. This approach will indeed give meaning to and enrich our representative and participatory democracy in the best interests of all who live in South Africa.
Written by Adv Johan Kruger - Director: Centre for Constitutional Rights
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