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A R NOTHNAGEL
Tygervalley
27 May 1996
SEPARATION OF
POWERS BETWEEN THE EXECUTIVE AND THE LEGISLATURE
My submission is
that the Constitution proposed and adopted by the Constitutional Assembly
violates principle VI of the 34 Constitutional
Principles contained in Schedule
4 of the 1993 Constitution.
Principle VI reads as
follows:
‘VI. There shall be a separation of powers between the
Legislature, Executive and Judiciary, with appropriate checks and balances
to
ensure accountability, responsiveness and openness.’
Principle VI
says more than just ‘There shall be a separation of powers between the
Legislature, Executive and Judiciary’.
It prescribes the necessity and
the reasons for this separation of the powers.
It enhances the meaning of
separation by adding how it should be done, namely ‘with appropriate
‘checks and balances’.
It further enhances the separation, by
adding reasons for the separation with the aim to ‘ensure accountability,
responsiveness
and openness.’
If it was not the intention of
principle VI to separate the Executive from the Legislature why were the words
‘with appropriate’
‘checks and balances’, together with
‘ensure accountability, responsiveness and openness’
added?
To my view, Principle VI rightly implies that the separation of
the powers of the Executive and the Legislature is _____ qua non to
‘accountability, responsiveness and openness’.
Therefore it
could be argued that the non separation o f powers, in the context of the word
‘appropriate’ implies less
‘accountability, less
responsiveness and less openness’ if the powers are not
separated.
Principle VI does not distinguish between the said three
powers. It clearly says that any one of these three powers should be separated
from any other of the three powers.
How and where does the new
Constitution violate Principle VI of the Schedule?
Article 47
(1)(a)(i) of the Constitution. Article 91(3)(a), Article 91(3)(b), 91(3)(c) and
91(4) of the adopted Constitution clearly
violates the principles of the
‘separation of powers between the executive and the legislative’ as
laid down in Principle
VI quoted above.
Article 47(a)(i) makes provision
for the President, the Deputy President, Ministers and Deputy Ministers to
remain members of the
National Assembly once they have been elected and
appointed to such executive positions.
Article 91(3)(a) goes further and
lays down that the President must select the Deputy President from among the
members of the National
Assembly. The President and the Deputy President, the
most influential members of the Executive, then remain members of the
Legislature.
Article 91(3)(b): The President may select any number of
Ministers from among the members of the Assembly. This enhances the influence
of the executive in the Legislature because these members remain members of
Parliament, their influence is being underlined further
by article 9(3)(c): The
President may select no more than two ministers from outside the
Assembly.
Article 91(4): The President must appoint a member of the
Cabinet to be the leader of Government Business in the National Assembly.
In
this regard the Executive (to a certain degree) takes control of the functioning
of Parliament.
This leader of Parliament, along with the Speaker and the
chief whip of the majority Party and other ships, organizes the programme
of
Parliament and the precedence of matters to be dealt with by
Parliament.
Conclusion:
There can simply be no separation
of powers if people are allowed to be members of the Executive (one of the
‘Powers’)
and the Legislature (another one of the
‘Powers’) simultaneously.
Proposal
It is
therefore my submission that the Constitutional Court should rule that the
Constitutional Assembly and/or Parliament should
amend the proposed
constitution, in order to bring it in line with the said Principle VI of the 34
Principles. This should ensure
a separation of the Executive and the
Legislature.
The President, the Deputy President, Ministers and Deputy
Ministers should, by the Constitution, be excluded from being allowed to
be
members of the Parliament, or to serve in any position of Parliamentary power in
Parliament.
The only exception is that they may be present in Parliament
to attend debates, to address parliament in general political debates,
when
introducing legislation, when proposing their Department’s budget, when
answering questions in Parliament, or when required
by Parliament to discuss any
matter.
If the President wants to address Parliament he should be
afforded that opportunity whenever he wishes.
Parliament, or any
Committee of Parliament, should literally have the power vested in the
Constitution to summons a Minister to appear
before Parliament, or any committee
of Parliament, to give account of matters pertaining to his/her own or their
Department’s
activities.
The Executive, the President, the Deputy
President, Ministers and Deputy Ministers, should not be allowed to vote on any
matter before
Parliament.
In Germany and France a ‘caretaker member
of Parliament’ is appointed in the place of a member of Parliament when
such
member is appointed as member of the Executive, i.e. Cabinet Minister or
appointed Deputy Minister.
If the Minister or Deputy Minister ceases to
be a Minister or Deputy Minister they can regain their seat in Parliament and
the caretaker
parliamentarian then leaves Parliament.
Why should the
Executive and the Legislature be Separated?
It is fundamentally wrong
for the President, the Deputy President, Ministers and Deputy Ministers to sit
in judgement, in Parliament,
as member of such Parliament, on their own
management and that of their Departments.
They should be allowed to
participate in the work of the Legislature concerning the general running of the
country i.e. votes of confidence
in the Government etc. However, they should
not be allowed to vote.
As members of Parliament cabinet Ministers and
Deputy ministers also attend the influential caucus meetings of their own Party.
Here
they can exert pressure on non-Executive members of their own party to sway
the opinion of the caucus, or to discipline members to
vote and to speak up in
Parliament, in accordance with the Executive’s view i.e. the ‘party
line’.
The present system where Ministers and Deputy Ministers are
also members of Parliament actually forces ‘aspirant’ (members
of
Parliament) to constantly ‘tow the line’ in order not to be
eliminated from any future promotion.
I request the opportunity to
address the Constitution Court further on this matter in person.
I have
had 20 years of personal experience on these matters, firstly as an elected
member of the ‘old Provincial Council of
the Transvaal’ (1970-1974)
and thereafter, as member of the old South African Parliament
(1974-89).
I also had the privilege as SA Ambassador to the Netherlands
(1989 to 1993), to observe how democracy functions in Europe, where the
Executive and Parliament is indeed separated.
ALBERT E
NOTHNAGEL
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CERTIFICATION OF NEW CONSTITUTIONAL
TEXT
Thank you for your submission of 27 May 1996.
I have been
asked by the President of the Constitutional Court to inform you that your
objections will in due course be taken into
account by the Constitutional
Court.
M NIENABER
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