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OBJECTIONS TO CERTIFICATION OF THE NEW CONSTITUTION
by Professor
A C Cilliers, Stellenbosch
GENERAL
I respectfully
submit that the following provisions of the draft Constitution do not comply
with provisions of the 34 Constitutional
Principles, on the grounds as set out
below.
The International Covenant on Civil and Political Rights 1966 (the
‘ICCPR’) is the closest approximation to all "universally
accepted
fundamental rights" referred to in Constitutional Principle II and is therefore
used as criterion for determining whether
or not the provisions of the Bill of
Rights comply with Constitutional Principle II.
1)
Preamble
The preamble places predominant stress on the "injustices
of our past", thereby setting the scene for the interpretation of the entire
Constitution in the light of the struggle against apartheid, instead of
furthering the main aim of the new constitutional order,
namely equality,
non-discrimination and reconciliation in a democratic context.
The
above-mentioned tenor of the preamble, which can be an aid to the interpretation
of the new Constitution, is contrary to Principle
III (the promotion, inter
alia, of "national unity"), which implies (inter alia)
reconciliation).
2) Founding provisions
Clause 6(3) (read
with clause 6(4)) regulates the use of particular official languages for the
purposes of government.
This clause, properly interpreted, is contrary to
the provisions of Principle II, which requires that the diversity of language
and
culture shall be acknowledged and protected, and conditions for their
promotion encouraged. The concept "official languages" implies,
in the context
of Principle II, that subjects are entitled to use any of such languages in
their dealings with the government, and
not that the government can use any
official language in its dealings with subjects. This is so despite the fact
that clause 6 is
not contained in the Bill of Rights.
3) Bill of
Rights
Clause 9(2) is aimed at the promotion of "the
achievement of equality" before the law, as opposed to the provisions of
Principle V, which is
aimed merely at the "amelioration" of the conditions of
the disadvantaged. Clause 9(2) (or any other constitutional provision) cannot,
for instance, bring about the achievement of economic equality. Clause 9(2)
goes beyond Principle V.
Clause 17 provides for freedom of
assembly and demonstration, including the right to present petitions. The
latter provision is contrary to
article 21 of the ICCPR 1966, which reflects
public international law in this regard. It places the recipient of the
petition in
an unfair bargaining position, in so far as some positive response
to the petition is necessarily implied. I do not deny the existence
of a right
to petition, exercised by small groups of representatives on behalf of a large
body of their principals, but to couple
petitions with mass action such as
demonstrations goes beyond universally accepted fundamental rights in public
international law,
as incorporated by reference in Constitutional Principle
II.
Clause 21(1), providing for freedom of movement of "everyone"
(as opposed to clause 21(3) and (4) - "citizens") is contrary to article 12(1)
of the ICCPR, which applies only to "Everyone lawfully within the territory of a
State", and accordingly contrary to Principle II
(see GENERAL above). Clause 21
(1) should not apply to unlawful immigrants. (The same argument applies to a
number of other provisions
of the Bill of Rights, affording unlawful immigrants
rights in contravention of Principle II, incorporating by reference, provisions
of the ICCPR.)
Clause 29(3) (read with clause 29(4)) enables the
state to determine that the establishment and maintenance of (particular)
independent educational
institutions could take place without state
subsidies.
This clause contravenes Principle XI, which guarantees
acknowledgement and protection of the diversity of language arid culture.
Clause 9(3) may possibly acknowledge the diversity of language and culture, but
it certainly does not provide for the protection
of such diversity, as the cost
("at their own expense") may he prohibitive for such institutions to make
‑provision for "equitable"
treatment of official languages, as is
contemplated by clause 6(4).
Clause 30, it is submitted, is
contrary to Principle XI, in so far as language and cultural rights are made
subservient to specific other provisions
of the Bill of Rights, instead of being
overriding, according to the tenor of Principle XI.
In respect of clause
31 (providing for the rights of cultural, religious and linguistic communities,
but subject to clause 31(2)),
the same criticism can be raised as in respect of
clause 30 above. Clause 31, it is submitted, is also an infringement of
Principle
XI.
Clause 36, providing for limitation of rights in terms of
ordinary laws in circumstances where there is no necessity to do so, in
effect
emasculates the essence of entrenchment and accordingly contravenes Principle
II.
4) The President and National Executive
Clause
83 requires the President to uphold, defend and respect the Constitution,
but not "all other law of the Republic" (see Schedule 2, paragraph
1 - oath of
the President) as well. Clause 83 is in conflict with the concept of a
constitutional state, which appears from the
Constitutional Principles as a
whole.
5) Courts and administration of Justice
Clause
179 provides inter alia for a national Attorney General, who will in effect
be under control of the executive. These provisions do not
ensure "equality of
all before the law and an equitable legal process", as is required by Principle
V. The provisions of clause 179
as a whole, providing for a national prosecution
policy and intervention by the National Director of Public Prosecutions, enables
selective prosecutions in contravention of the spirit of Principle V and,
possibly, that of Principle VI (separation of powers).
Clause 180
(c), authorising national legislation providing for the participation of
"people other than judicial officers" in court decisions opens
the door for
adulteration that the judiciary should be appropriately qualified ( Principle
VII) .
6) General provisions
Clause 235 provides
for self-determination of certain minorities within a territorial entity in the
Republic ‘or in any other way, determined
by national
legislation’.
It is submitted that this clause infringes Principle
XXXIV, which uses the words ‘or in any other recognised way’. The
latter words require recognition either by international law or by a number of
individual world states, not necessarily being the
majority. National
legislation in this context was not contemplated by Principle
XXXIV.
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CERTIFICATION OF NEW CONSTITUTIONAL
TEXT
Thank you for your submissions of 27 May 1996.
I have
been asked by the President of the Constitutional Court to inform you that your
submission will in due course be taken into
account by the Constitutional
Court.
M NIENABER
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