Applicants complained that during the legislative process leading to the enactment of four health statutes, the NCOP and provincial legislatures did not comply with their constitutional obligations to facilitate public involvement in their legislative processes as required by the provisions of s72(1)(a) and 118(1)(a) of the Constitution respectively. The respondents maintain that the NCOP and provincial legislatures complied with the duty to facilitate public involvement and also argue that the scope of involvement envisaged by the applicants was too wide.
Judgement of Ngcobo J
(a)Whether the CC had exclusive jurisdiction over the present dispute under section 167(4)(e) of the Constitution. (b) Can a court grant relief in respect of the proceedings of parliament? (c) The nature and scope of the duty to facilitate public involvement? (d) Did NCOP and the provincial legislatures comply with their obligations to facilitate public involvement? (e) What is the appropriate relief if the NCOP and Provincial legislatures failed to comply with this obligation?
(a) Did CC have exclusive jurisdiction over the present matter? The question whether Parliament has fulfilled an obligation is pre-eminently a ‘political’ question and is reserved by 167(4)(e) solely for the CC to decide. This ensures that only the highest court in constitutional matters intrudes into the domain of the other branches of government. The closer the issues are to the area of separation of powers the more likely it is that the issues will fall within s 167(4)(e). Thus, the CC had competence to decide the issue.
(b) What do the public involvement provisions require?
The question is what is the nature and scope of the duty comprehended by these provisions and to what extent is it justiciable. The duty to facilitate public involvement must be understood in light of (a) the constitutional role of the NCOP in the legislative process (b) the right to political participation under international and foreign law and (c) the nature of SA’s constitutional democracy. All these help in determining the nature and scope of the duty to facilitate public involvement.
Role of the provincial legislature
They are involved in the legislative process at the national level; and thus section 118(1)(a) becomes relevant.
The right to political participation under international law This is a fundamental right set out in a number of international and regional human rights instruments. In most of these instruments, the right consists of: a general right to take part in the conduct of public affairs and a more specific right to vote/be elected. The precise nature and scope of the right is a matter for individual states to determine through their laws and policies. It is now generally accepted that modes of participation may include direct and indirect participation. The duty to facilitate public involvement in the legislative process under our Constitution must therefore be understood as a manifestation of the international law right to political participation.
The nature of our constitutional democracy
The notion that a nation’s sovereign authority belongs to its citizens is reflected in the preamble to the Constitution. Commitment to principles of accountability, responsiveness and openness show that the constitutional democracy of SA is not only representative but contains participatory elements. Participatory democracy is one of the basic and fundamental principles of SA democracy. Parliament must therefore function in accordance with the principles of participatory democracy.
The meaning and scope of the duty to facilitate public involvement The constitutional framework requires the achievement of a balanced relationship between representative and participatory elements in democracy. Section 72(1)(a) like ss 59(1)(a) and 118(1)(a) address the...