Progressives are unlikely to have much in common with Doctors for Life, an organisation that campaigns doggedly against a woman’s right to an abortion. But a couple of weeks ago, it would have been only a churlish progressive who would have not applauded a victory that this organisation gained at the Constitutional Court.
The organisation had complained that the National Council of Provinces (NCOP) passed certain health Bills, including the Choice on Termination of Pregnancy Act, without holding proper public hearings and ensuring adequate public participation.
The failure of provincial legislatures to hold public hearings also became relevant in that the provinces are critical to the very purpose of the NCOP.
Writing for the majority of the court, Judge Sandile Ngcobo noted that this case concerned an important question relating to the role of the public in the law-making process and thus the dispute lay ”at the heart of our Constitutional democracy”.
The case essentially concerned the nature and scope of the constitutional obligation of a legislative body to facilitate public involvement in its legislative process and those of its committees. A second question turned on the extent to which the Constitutional Court may interfere in the processes of a legislative body in order to enforce the obligation to facilitate public involvement.
Ngcobo said: ”In the overall scheme of the Constitution, the representative and participatory elements of our democracy should not be seen in tension with each other. They must be seen as mutually supportive. General elections, the foundation of representative democracy, would be meaningless without massive participation by the voters. The participation by the public on a continuous basis provides vitality to the functioning of representative democracy”.
The court held that the NCOP has an important role to play in the national law-making process. It represents the provinces to ensure that provincial interests are taken into consideration in the national law-making process.
Further, Parliament and the provincial legislatures have a broad discretion to determine how best to fulfil their constitutional obligation to facilitate public involvement in a given case, so long as it is reasonable to do so.
The court went on to say, however, that duty will often require Parliament and the provincial legislatures to provide citizens with a meaningful opportunity to be heard in the making of laws that will govern them.
Ngcobo found in relation to the Traditional Health Practitioners Act, and the Choice on Termination of Pregnancy Amendment Act, that these two Bills had generated great public interest at the council as evidenced by requests for public hearings. In recognition thereof, the council decided that public hearings would be held in the provinces and advised the interested groups of this fact. However, the majority of the provinces did not hold hearings on these Bills because of insufficient time. This was known to the council, which chose not to hold its own public hearings. For these reasons, Ngcobo held that the failure by the council to hold public hearings in relation to the Traditional Health Practitioners Act and the Choice on Termination of Pregnancy Amendment Act was unreasonable.
He therefore concluded that the council did not comply with its obligation to facilitate public involvement in relation to these two Acts as contemplated by section 72(1)(a) of the Constitution.
The Bills were set aside and Parliament has been given 18 months to solicit adequate public comment.
This decision is one of the most important to be delivered in some time. It represents a major assertion of the importance of participative democracy. The court assists in ensuring that the legislature and the public are able to enter into dialogue about key legislative measures. This is what makes sense of Constitutional democracy; it is not that un-elected judges run the country, but that the judiciary in a Constitutional democracy protects the very process that ensures that the citizenry participate in the public life of the country.
The court was careful not to overstep the boundary between its designated level of competence and that of Parliament. But it has now told Parliament that public participation matters, that Parliament is not closed to the public and that we live in a society where public debate is important.