The public’s right to participate in the law-making process came under scrutiny in the Constitutional Court on Tuesday.
Lobby group Doctors for Life (DFL) is arguing that amendments to four health laws were passed without the proper participation by the public, called for by the Constitution.
It was the first legal challenge to the democratic government’s law-making process and touches on issues relating to the separation of powers.
The laws in question are: the Choice on Termination of Pregnancy Amendment Bill; the Sterilisation Amendment Bill; the Dental Technicians Amendment Bill; and the Traditional Health Practitioners Bill. All four had been assented to but the last two have not yet been published.
DFL believe that the National Council of Provinces (NCOP) and the nine provincial legislatures did not facilitate proper public involvement and rushed the laws through Parliament.
They were happy with the process undertaken in the National Assembly, but argued that by excluding the NCOP and the provinces, there was not enough opportunity for public submissions and comments.
”There are different interplays between different people. At NCOP and provincial level members are different,” DFL advocate Kemp Kemp told the court.
”It is a public participation that is going to reach different people,” he said.
He said they did not want the laws declared invalid, but suggested an order that would allow for further public comment or possible amendments to the law.
”Currently for some of the legislation it is water under the bridge,” he said.
”But that does not mean there cannot be a form of address.”
Kemp said: ”If we get an order it will have an effect on how they deal with legislation in the future.”
Representing Parliament and the department of health, advocate Norman Arendse said the relevant sections in the Constitution did not use ”must ensure” when referring to the public participation process.
”It says they must facilitate [the process].”
He said that sections 59 and 72 governed the process that has to be followed in the National Assembly and the NCOP.
They mirrored each other and it was enough that procedures had been adhered to in the National Assembly.
The court heard that even though some of the NCOP delegates noted that they did not have enough time to consider the matter, they nevertheless voted for the laws.
Arendse also submitted that public involvement was facilitated in the National Assembly part of the process.
DFL objects to certain clauses relating to abortion contained in some of the Acts.
According to the Constitution the law making process can only be challenged once an Act has been passed into law.
The hearing continues. – Sapa