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A E NOTHNAGEL - SUPPLEMENTARY ARGUMENT
FIRST SUBMISSION
DATED 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 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 sine qua non to
‘accountability, responsiveness and
openness’.
Therefore it could be argued that the non separation of
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 only 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 principle of the
‘separation of powers between the executive and the legislative’ as
laid down in Principle
VI quoted above.
Article 47(1)(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 91(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 program
of
Parliament and the precedence of matter 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’) 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 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 want 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, Minister and Deputy Ministers to sit in
judgment, in Parliament,
as members 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 to 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 Constitutional Court further on this matter in person.
I have
had 20 yeas 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
Belville
27 May 1996
SECOND SUBMISSION
ADDITIONAL ARGUMENTS ON THE SEPARATION OF POWERS BETWEEN
THE EXECUTIVE AND THE LEGISLATURE,
AS REQUESTED
Principle VI of the 34 Constitution Principles, contained in Schedule
4 of the 1993 Constitution, reads as follows:
- There
shall be a separation of powers between the Legislature, Executive and
Judiciary, with appropriate checks and balances to ensure
accountability,
responsiveness and openness.
Provincial and Local
Government
All the arguments in my first submission, as well as in
this second submission, applies mutatis mutandis to the mentioned and all
other
articles in the proposed Constitution that deals with the other two tiers of
Government, namely the second tier (the Provinces)
and the third tier (Local
Authorities).
My submission therefore also applies to all those
provisions in the Constitution that allows or provides for the Provincial
Premiers
and Executive members of the Provinces to be members of the Provincial
Parliaments simultaneously.
It therefore also addresses those articles
that allows the Executive Members of Local Authorities to be members of the
Executive and
the Legislative Authorities simultaneously.
What does
Separation Mean?
Separation clearly means that members of the one arm
of government namely the Executive should not be allowed to sit in judgment,
as
members, on decisions to be taken by another arm of power namely the Legislative
arm.
If a member of the Executive on any of the three levels of
Government (Central, Provincial or Local) could sit in the Legislature
simultaneously, with the right to make decisions, to vote, to serve in a
committee of the legislature as a member or to organize
the precedence of work
in such legislative body, one clearly cannot speak of separation.
How can
members of the Cabinet be members of Parliament, in judgment of their own
decisions, in the administration of their own Departments,
or their cabinet
colleagues’ departments.
What did the Constitutional Assembly
have in Mind with Principle VI - The Separation Principle?
The
Constitutional Assembly clearly acknowledged the need for separation as a method
for ‘appropriate checks and balances to
ensure accountability,
responsiveness and openness.’
If then however allows the members of
the Executive to take decisions in the very body that have to check on them,
namely Parliament!
The Constitutional Assembly acknowledges the need for
separation but then it proposes the integration of the executive and the
Legislature
by way of dual membership for Cabinet Ministers and Deputy Ministers
of Parliament, for the new constitution.
To my view, the real reason
could be to give more power to the ruling party over Parliament. If that was
not the intention with this
conflict of the Principle VI and the proposals in
the constitution, it will certainly result in an unhealthy power dominance for
the majority party in the affairs of Parliament and the running of
government.
During the Constitution making process I approached several
members of the Constitutional Assembly to lobby for the separation of
powers
between the Cabinet and Parliament. I also discussed it briefly, in person,
with the Chairman of the Constitutional Assembly.
I understand that three
of the political parties actually argued in favour of the separation of the
powers of the Executive and the
Legislature in the Constitution.
The
integration of the Executive and the Legislature as it stands in the
Constitution now, actually came about through bilateral discussions
between
parties.
NB: To now ignore, possibly forever, the necessity of the
separation of the two powers in South Africa, as a result of a bilateral
agreement between two parties (both in power during the discussions, with vested
interests), is to punish the population of South
Africa forever, on such a vital
aspect of it’s future constitution.
The Relation between the
Executive and Parliament
Who has the Power?
In the
proposed Constitution that violates the accepted principle of the separation
between the Executive and the Legislature, most
power is now, unfortunately,
once again, vested in the hands of the Executive, via dual membership of members
of the Cabinet in Parliament.
In practice it also means more power in the
hands of the Executive President, who in turn appoints and dismisses members of
the cabinet.
Members of his Executive body, his Cabinet, serve in the
Legislature as members. They control the procedures of Parliament, they
vote,
they can serve as members of Parliamentary Committees and most of all, and
sadly, they exert a tremendous caucus disciplinary
pressure n their party
members in Parliament.
They are firmly, like in the old apartheid days
back in power, to govern as they like.
Legislation: A
Process
In almost all of the democracies of the world, where the
powers of the Executive and the Legislature is separated, legislation becomes
a
process of negotiation between the Executive and Parliament.
Parliament
cold not on its own pass legislation of which the Executive does not approve.
On the other hand the Executive cannot force
the hand of Parliament to adopt
legislation that Parliament does not approve.
In this process the media
and members of the public participate in proposed legislation in many ways: by
giving evidence, by debating,
by criticizing, promoting and putting their own
views across.
In this way the Legislature becomes a custodian of the
democracy for the people by making sure that attention is being paid to the
submissions of the public, without ministers, the Executive calling the
tune.
In practice it means that even the members of the governing party
are allowed, and in fact do, in many countries where the powers
are separated,
vote against their own majority party.
Lobbying between the Executive
and the Legislature
In all the democracies where the Executive and
the Legislative powers are separated, both groups lobby and try to persuade one
another.
This process is not only healthy but inevitable.
Where the
Executive on all three levels therefore does not have membership of the
Legislature, where they are not allowed to vote
on decisions of the Legislature
or where they are not allowed to serve on any committee in the Legislature, they
can still communicate
with all and any members of Parliament and try to
influence any decision of the Legislature.
The Executive should not
Govern Uncontrolled
In a democracy the public does not elect a party
or any members to parliament (Legislature) for five years to take any decision
that
they as elected majority Party deem fit.
Of course we, the public,
may nowadays go to the Constitutional Court, the Human Rights Committee, the
Public Protector, the Auditor
General I f the matter of our concern falls within
the ambit of their responsibilities.
But if Parliament has members of the
Cabinet and Deputy ministers in it’s midst, the public may rightly feel
that Parliament
is just a rubber stamp of the Cabinet, and often of incompetent
government.
When Should the President, the Deputy President,
Ministers, and Deputy Ministers attend Parliament?
When the President
addresses Parliament
When they listen to debates
Whenever they (Ministers)
would like to make a statement of public importance
When Ministers introduce
Legislation
When answering questions
When introducing the budget of their
specific Department
When summonsed to appear before Parliament
When they
want to testify before a committee of Parliament
Cabinet Members and
Deputy Ministers as Members of Parliament Leads to the Manipulation of
Parliament
Members of the Executive, that also serve as members of
Parliament, tend to manipulate parliament in various ways:
The Caucus
System:
Via the caucus system the members of Parliament can be
‘forced’ to support the Executive’s decisions.
I
attended many caucus meetings where it was said explicitly to the caucus members
of the ruling Party: The caucus does not make
policy, the caucus merely
expresses it’s views and then votes for the Cabinet’s
decisions.
I have no reason to think that it will not be the same under
the proposed constitution, if there is not a proper separation of
powers.
Members of the majority party that do not agree with the cabinet,
or differ in public, face disciplinary action from the Party
hierarchy.
The caucus lays down strict disciplinary rules for it’s
members.
The majority Party then becomes more important and powerful than
Parliament itself.
Party Membership
The proposed
Constitution further disallows a member of the Legislature to switch from the
one party to the other.
Members of the ruling Party in Parliament
therefore have little choice but to ‘listen’ and to
‘obey’ the decisions
of the Cabinet, their fellow colleagues in
Parliament.
Future Candidacy
A disagreeing member
discredits himself easily in his party if he should speak up. The Party could
for instance eliminate him from
future Party lists.
Portfolio
Committees
Up to now we had a fairly good demonstration of the power
of the Portfolio Committees. Their meetings are open and they are performing
much better than in the old Parliament, but this will not last for very
long.
The fact remains that Ministers can be appointed as members and
even as chairpersons of Parliamentary Portfolio Committees.
My submission
is that the quoted clauses in my first submission make a mockery of the
so-called separation of the powers between the
Executive and the
Legislature.
It administers exactly the old sort of medicine, where the
Governing Party in Parliament is controlled by the Cabinet and thus makes
a
virtual dictator of the President, if it should be in his nature to act as a
dictator.
Who Checks the Administrative Authority of the
Country?
Billions of rands of taxpayers money is used by Government
Departments. When it is misused or where and when corruption occurs, Parliament
sits with those politically responsible, in their midst, as voting
members.
What is more, members of the governing party in Parliament are
being hamstrung by the caucus discipline when they criticize the mismanagement
in a State Department. They are virtually obliged to protect the politically
responsible Minister or Deputy Minister! The system
requires them to say
‘Innocent’!
My Submission Entails the Following Suggested
Changes in the Proposed Constitution
Members of the Executive should
not simultaneously be members of the Legislature. Once a member of Parliament
is elected as Minister
or Deputy Minister his right to b a member of Parliament
automatically terminates.
The Party then appoints a caretaker MP in his
place. If he should resign as a member of the Executive or is
‘sacked’,
he can return to Parliament as member in the place of such
caretaker member.
Parliament should not be ‘forced’ to select
or accept any person for any position in Parliament from among the members
of
the Executive.
Parliament should be allowed to elect the leader of the
Assembly who should not be a Minister.
The program of Parliament should
not be organized or influenced by the Cabinet.
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 Principle VI of the 34 Principles.
This will
ensure a true and full separation of the Executive and the
Legislature.
Powers of Parliament
Parliament is the forum
where the people of the country should be represented by the people whom they
elected.
The Executive is the forum where the elected members take
decisions and run the country on a day to day basis.
The people
don’t elect the cabinet. The decisions of the cabinet can greatly
influence the lives of the people.
Members of Parliament are there to
serve the interests of the people and to protect their rights and not to
‘cover up’
for the Executive.
Parliament should therefore,
publicly and via the portfolio Committees, guard against mismanagement of
government Departments.
Democracy and Power
Democracy was,
from the beginning, meant to give Power to the people (the demos). With the non
separation of the Executive and the
Legislature in our new Constitution the
people of South Africa loose a lot of their say in matters and the Executive
retain their
dominant and powerful position, as in the past.
We are now
back to the old South ‘Africa where the Executive ‘runs’
Parliament and once again entrenches it’s
grip on
Parliament.
Instead of Parliament becoming a custodian for the rights of
the people, the Executive are actually fully in charge.
I feel saddened
by this infringement of ‘checks and balances’ in our new
constitution.
Where do Members of the Cabinet Find Time to Sit in
Parliament?
Ministers and Deputy Ministers’ presence and
functions in Parliament, as members of Parliament, is a time consuming
task.
Where in a modern day democracy is it a part time job to run a
Government Department and to attend to Cabinet matters?
REQUEST TO
ADDRESS THE CONSTITUTIONAL COURT
I, therefore, once again, request
the opportunity to address the Constitutional Court on the violation in the
proposed Constitution,
by the Constitutional Assembly of Principle VI of the 34
Constitutional Principles contained in Schedule 4 of the 1993
Constitution.
There are several other aspects on this issue that I would
like to bring to the attention of the Court. Here I specifically refer
to
examples of what happened where Cabinet Ministers and Deputy Ministers wrongly
influenced Parliament in the past because of their
presence and powers in
Parliament.
ALBERT E. NOTHNAGEL
11 June, 1996
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