Marion Edmunds
The Constitutional Court wants to make it more difficult for the Constitution to be changed by a strong ruling party.
Parliament’s power to write and re-write the Constitution has been a controversial point in negotiations between political parties since Codesa, when talks broke down over the dispute between the African National Congress and the then National Party government on what sort of majority was needed to pass and change future constitutional provisions and the Bill of Rights.
And while, at that point, the dispute centred on the passing of the final constitutional text after the 1994 elections, the fear that haunts the debate remains the same: to what extent should a majority party be allowed to control the writing and re- writing of the negotiated constitutional provisions, which were part of the political settlement or treaty which ended apartheid and the liberation movement’s armed struggle?
At the moment the ANC is just short of a two-thirds majority — just strong enough to be threatening, but too weak to make amendments without the support of the NP, at least. Opposition parties are fearful that, come the next election, the ANC will garner more than the required two-thirds majority and then the Constitution will be its oyster.
Constitutional Principle XV serves as a guarantee for nervous opposition parties and sceptical political observers: “Amendments to the Constitution shall require special procedures involving special majorities.”
The Constitutional Court said in its judgment that this principle was not entirely satisfied.
While it accepted a two-thirds majority in Parliament was a special enough majority with which to pass constitutional amendments, it did not think the new text created a sufficiently special process by which amendments could take place.
“It is of course not our function to decide what is an appropriate procedure, but it is to be noted that only the National Assembly and no other House is involved in the amendment of the ordinary provisions of the new text; no special period of notice is required; constitutional amendments could be introduced as part of other draft legislation; and no extra time for reflections is required,” the judgment said.
The constitution-makers will have to think of a process which satisfies the court’s understanding of the word ” special”. That process will have to differ from the passing of normal legislation, and possibly grant people who oppose such amendments greater opportunity to contest them.
Presidential adviser Professor Fink Haysom said there were a range of mechanisms to use, indicating that a parliamentary portfolio committee might be mandated to scrutinise all constitutional amendments and that they could also bring in the provinces to discuss amendments. He said a new procedure would not necessarily make amending the constitution more difficult for the ANC.
Roelf Meyer, the NP’s secretary general, indicated this week that this was one area on which his party would like to do some creative thinking. “We would like to delve in this area,” he said.
Sources within his party were bolder in stating they thought the NP ought to take this opportunity to build added protection for the Constitution in the final lap of negotiations.
The Democratic Party’s Colin Eglin said it was preparing an extensive response to the Constitutional Court judgment and would be taking the judge’s reservations on this issue very seriously.
The constitution-makers are also going to have to think of a way to create special protection for the Bill of Rights, following the court’s instruction, based on Constitutional Principle II, which demands that rights be “entrenched”.
The judgment says: “A two-thirds majority does not provide the bulwark envisaged by the constitutional principle. The constitutional principle does not require that the Bill of Rights should be immune from amendment or practically unamendable. What it requires is some `entrenching’ mechanism … which gives the Bill of Rights greater protection than the ordinary provisions of the New Text.”
This part of the judgment has been welcomed by the Human Rights Committee. Spokesman Susie Cowen said this week: “We are happy that the court wants the CA to set out the procedure for the amendment because it will make this section stronger and give the Bill of Rights greater protection.”