The people’s opinion matters
Doctors for Life International v Speaker of the National Assembly and Others (2006)
Can Parliament make laws without consulting the public? Or can the Constitutional Court interfere in parliamentary processes?
The Constitutional Assembly, in framing our Constitution, was not content only with the right to vote as an expression of the right to political participation. It opted for a more expansive role of the public in the conduct of public affairs by placing a higher value on public participation in the law-making process
Justice Sandile Ngcobo
from the Doctors for Life judgment, 17 August 2007
Background
In 2005, Parliament passed four pieces of legislation relating to reproductive healthcare matters. Doctors for Life, a conservative organisation, objected to the passing of this legislation, alleging that the National Council of Provinces (NCOP) violated section 72 and section 118 of the Constitution by not sufficiently involving the public in this process.
Section 72 of the Constitution states that the NCOP has an obligation to facilitate public involvement in legislative processes, while section 118 states that provincial legislatures must do the same.
Doctors for Life, which has conservative views on the Choice on Termination of Pregnancy Act 92 of 1996, approached the Constitutional Court with a novel challenge to the proposed law, based on participatory democracy.
The tension at the heart of the matter was between representative democracy and participatory democracy. The word participatory is not used in the Constitution, but section 1(d) refers to a “multi-party system of democratic government”. The meaning of that is what became central to the judgment.
Path to the Constitutional Court
Doctors for Life approached the Court directly as it is the only court that has jurisdiction over these matters, as prescribed by section 167 of the Constitution.
Some of the Arguments
Doctors for Life International
Doctors for Life argued that Parliament failed to fulfil its constitutional obligation to facilitate public involvement when it passed these four Bills, all of which related to health issues:
- the Sterilisation Amendment Bill;
- the Traditional Health Practitioners Bill;
- the Choice on Termination of Pregnancy Amendment Bill; and
- the Dental Technicians Amendment Bill.
However, Doctors for Life’s complaint was confined to the process followed by the NCOP.
Speaker of the National Assembly (Parliament)
Parliament argued that it had complied with its respective duties to facilitate public involvement in the passing of the Bills. It also argued that this obligation to facilitate public involvement only requires that the public be given an opportunity to make either written or oral submissions sometime during the process of making laws.
What did the Constitutional Court decide?
The Court found that the NCOP has an important role in the law-making process, and, consequently, has the duty to ensure that citizens are heard in a meaningful way. Parliament and the provincial legislatures have broad discretion to determine how best to fulfil their constitutional obligation to facilitate public involvement in a given case, as long as they act reasonably. However, the duty to facilitate public involvement will often require Parliament and the provincial legislatures to provide citizens with a meaningful right to be heard in the making of the laws that govern them.
The Court found that the Choice on Termination of Pregnancy Act 92 of 1996 and Traditional Health Practitioners Act 22 of 2007 were bills that generated enough public interest to justify public hearings, and that by not holding public hearings the NCOP had acted unreasonably. The Dental Technicians Act 19 of 1979 did not generate the same public interest, and thus the NCOP did not act unreasonably in not holding public hearings in this case.
The Court held that the commitment to principles of accountability, responsiveness, and openness shows that our constitutional democracy is not only representative, but also contains participatory elements. This is a defining feature of the democracy that is contemplated. It is apparent from the preamble of the Constitution that one of the basic objectives of our constitutional enterprise is the establishment of a democratic and open government in which the people shall participate to some degree in the law-making process.
The Court declared the Traditional Health Practitioners Act and the Choice on Termination of Pregnancy Act invalid but suspended the order of invalidity for a period of 18 months to enable Parliament to rectify the error.
The purpose of giving this Court exclusive jurisdiction to decide issues that have important political consequences is ‘to preserve the comity between the judicial branch of government’ and the other branches of government ‘by ensuring that only the highest court in constitutional matters intrudes into the domain’ of the other branches of government.
Justice Sandile Ngcobo
from the Doctors for Life judgment, 17 August 2006
Impact and Significance
The judgment highlights the importance of participatory democracy, and that citizens can participate in our democracy beyond voting in elections. The Constitution makes provision for citizen participation in the law-making process.
The judgment of the Court discussed the historical roots of South Africa’s constitutional democracy, the complete denial of the right to political participation during apartheid and the participatory nature of the anti-apartheid movement, and the traditional practice known in different languages as imbizo and lekgotla – a public gathering called by community leaders to discuss matters affecting the community.
The Court’s thoughtful reasoning offers important insights for the world beyond South Africa. Others have written about its contribution to an understanding of the right to political participation, and the role of respect and dignity as components of that right.
Parliament rectified the errors in both the Choice on Termination of Pregnancy and Traditional Health Practitioners Acts, which are laws that protect the well-being of South Africans.
The case will be of great importance to Parliament in respect of all legislation, not merely health bills, because the highest Court in the land has now made it clear that Parliament must not cut corners but provide sufficient time and opportunity for citizens to have their say in respect of all bills passing through Parliament.
John Smyth
Doctors for Life spokesperson, 18 August 2006
Learn more:
Legacy Cases
These are some of the cases that have come after the Doctors for Life case, which have expanded on its judgment.
Matatiele and Others v President of the Republic of South Africa and Others (2006)
A day after giving judgment in Doctors for Life, the Court gave its judgment in another related case: Matatiele and Others v President of the Republic of South Africa and Others. In this case, government had conceded that the KwaZulu-Natal (KZN) legislature had not held public hearings or invited written submissions on the Twelfth Amendment Bill which redrew its provincial boundaries. The amendment had enormous symbolic and practical consequences for the people of Matatiele – it affected that community’s identity and changed the governments responsible for delivering its health services, education, and social welfare.
Again, the Constitutional Court found that the failure of the KZN legislature to hold public hearings was unreasonable. The Court issued an order of invalidity for the part of the constitutional amendments that transferred Matatiele Municipality from KZN to the Eastern Cape. As in the Doctors for Life case, the Court in Matatiele suspended the order of invalidity for 18 months, which allowed Parliament and the KZN legislature to remedy the constitutional defect and adopt a new amendment.
Merafong Demarcation Forum and Others v President of the Republic of South Africa and Others (2008)
The applicants, who were members of the Merafong community, challenged the validity of parts of the Constitution’s Twelfth Amendment Act of 2005, as well as of the Cross-boundary Municipalities Laws and Repeal Related Matters Act 23 of 2005.
The Twelfth Amendment did away with cross-boundary municipalities and, in doing so, changed provincial boundaries, including the boundary between the provinces of Gauteng and North West. Merafong City Local Municipality (Merafong) was a cross-boundary municipality. One part of it was thus relocated from Gauteng to North West, where the other part of the same municipality was located before the passing of the Twelfth Amendment.
The applicants asked the Constitutional Court to declare that the Gauteng Provincial Legislature had failed to comply with its obligation in terms of section 118 of the Constitution to facilitate public involvement in its processes leading up to the approval of the Twelfth Amendment Bill by the NCOP.
Late in 2005, the Gauteng and North West Provincial Legislatures called for and received submissions on the municipal classification of Merafong. A public hearing was also held. The majority of views expressed favoured Merafong being classified as part of Gauteng. The Court found that the Legislature had fulfilled its duty to facilitate public involvement as required by section 118(1)(a) of the Constitution. The Court also found that the Legislature had taken reasonable measures to solicit public comment, and that the submissions made by the public had been considered
