SERJEANT AT THE BAR
Last week was a bad week for our constitutional enterprise. The week ended with the publication of the much-awaited report on the arms deal by the three public agencies.
Understandably, the manner in which these three bodies were mandated to investigate meant that there would be even closer public scrutiny of the findings.
One can only express the hope that the findings stand up to rigorous public scrutiny and that the report is not found to contain more Omo than investigative substance. The integrity of critical public watchdogs is at stake.
So the week ended with questions about the quality of these important institutions. It began with the publication of draft legislation to suspend the anti-defection clause as it applies to Parliament and the provincial councils.
In principle there can be no objection to the scrapping of a provision which prevents an MP or an MPL from acting in terms of conscience and crossing the floor. The ability to cross the floor may well be more problematic in the case of a list system based upon proportional representation than in the case of constituency elected representatives where, at least theoretically, the person is elected in his or her own name. But there is precedent for the principle even in proportional representation systems.
The problem lies with two aspects of the draft. In the first place the principle of anti-defection is not repealed but suspended. Secondly, the suspension depends upon a proclamation to be issued by the president who may then determine the period for which crossing the floor may be permitted.
The only fetters on his discretion are that he must consult with leaders of other political parties represented in the National Assembly and the premiers (hardly a fetter as much as an inconvenience) and that the ability to cross in terms of the proclamation can only be invoked 12 months from the date of an election.
Two questions compel an answer. Why only suspend the anti-defection clause? If the principle of anti-defection can no longer be justified, then scrap it. On what basis can the power to effect the suspension be placed in the hands of the president who is the leader of the largest political party in the legislature?
Significantly the answers which have been given publicly for the draft legislation turn on political objectives. The African National Congress claims with considerable justification that our politics are still based upon race.
Some opposition parties invoke the spectre raised so superbly by JM Coetzee in his novel Waiting for the Barbarians, namely that a barbarian government awaits us at any moment. Division on racial lines is sustained by such politics of irrational fear. The logjam needs to be broken if a new nation is truly to be constituted. To this, many will say amen.
But as compelling an argument as this is, it is not an answer to the legislation. Firstly, Marthinus van Schalkwyk represents only the noble political values of venality and patronage; Afrikaners left him stranded at the last election in favour of the Democratic Party and the coloured community in the Western Cape is hardly likely to change political perspective as a result of the changes of a politician as commanding as Kortbroek. The reason for the swift change in the law lies patently in the few seats the ANC can gain from the New National Party to gain control of the Western Cape. This amounts to the changing of laws not for any noble purpose but for short-term political advantage.
We have come from a history where law was shown no official respect. Yet official respect is a most important ingredient in building legitimacy for law which will help sustain our Constitution through troubled times.
Once important laws are changed for short-term expediency, the very constitutional system is weakened. Only if the government shows respect for the rule of law as a constraint, even on its own powers, can we build a tradition in which the public will come to see the importance of defending the law against egregious exercises of power.
Many democratic-minded South Africans may applaud this legislation knowing that it will herald the end for the NNP. But that would be to forget the important lesson to defend the legal principles of a constitutional state which it must be admitted this government has done more to create than any other body.
If we fail, we should not moan when other constitutional provisions are changed. For example, it has been rumoured that amendments concerning the term of the executive in years to come could be mooted for the short-term reason that the country needs particular personnel. That rumour may well be nothing more than malicious political gossip but it serves to illustrate the importance at this stage of our history of defending our constitutional system against short-term changes.