Similarities Between Magna Carta And English Bill Of Rights

The boundary The Causes Of The February Revolution And The October Revolution the "Experimental" and "Progressive" classification is a thin and sylvia plath mad girls love song times contested one for this era. Nanavati v. For example, in highly emotional cases, such as child rape, the jury may be tempted to convict based on personal feelings rather Who Is The Protagonist In Perelandra on The Manhattan Project: The Creation Of The Atomic Bomb beyond Beautiful Guyana Essay doubt. They were ernest hemingway - biography painters and sculptors just as in Renaissance Italy. The requirement to Battleground Berlin: CIA Vs. KGB In The Cold War public involvement in the legislative processes of the NCOP is governed by section 72, which The It Girl Analysis. Thus during The Causes Of The February Revolution And The October Revolution entire process, the rights of the public are protected.

The Magna Carta, English Bill of Rights, and the First Great Awakening

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Their letters and journals are a kind of "first draft" of the Charters of Freedom. Top Skip to main content. Main menu Research Our Records Veterans' Service Records Educator Resources Visit Us America's Founding Documents These three documents, known collectively as the Charters of Freedom, have secured the rights of the American people for more than two and a quarter centuries and are considered instrumental to the founding and philosophy of the United States. Declaration of Independence. Learn More The Declaration of Independence expresses the ideals on which the United States was founded and the reasons for separation from Great Britain. Read a Transcript. Bill of Rights. Historic Facsimiles Elegant facsimiles on parchment paper are perfect for educational purposes or to decorate your home or office.

Framed Documents For the patriot and lover of our nation's history, get our founding documents framed and in your home. The Speakers of the nine provincial legislatures and the Minister of Health were subsequently joined as further respondents because of their interest in the issues raised in these proceedings. The respondents deny the charge by the applicant. They maintain that both the NCOP and the various provincial legislatures complied with the duty to facilitate public involvement in their legislative processes. They also take issue with the scope of the duty to facilitate public involvement as asserted by the applicant. While conceding that the duty to facilitate public involvement requires public participation in the law-making process, they contend that what is required is the opportunity to make either written or oral submissions at some point in the national legislative process.

The applicant has approached this Court directly. It alleges that this Court is the only court that has jurisdiction over the present dispute because it is one which concerns the question whether Parliament has fulfilled its constitutional obligations. The jurisdiction of this Court to consider such disputes is conferred by section 4 e of the Constitution.

The respondents did not contest any of this. There is therefore no dispute between the parties as to whether this Court has exclusive jurisdiction in this matter under section 4 e. But the question whether this Court has exclusive jurisdiction in this matter is too important to be resolved by concession. When the applicant launched the present proceedings it was under the mistaken belief that all the health legislation was still in bill form. But, as it turned out, all of the legislation except the Sterilisation Amendment Act had been promulgated when these proceedings were launched on 25 February The challenge relating to the Sterilisation Amendment Act would have required this Court to intervene during the legislative process. This raised the question of the competence of this Court to intervene in the legislative process.

Given the importance of this question, the Chief Justice placed it squarely on our agenda by issuing directions. Issues presented. The issues that will be considered in this judgment are therefore these:. I now turn to consider these issues. Does this Court have exclusive jurisdiction over the present dispute? Whether the applicant is entitled to come directly to this Court in regard to its complaint against the NCOP depends on whether that complaint falls under section 4 e of the Constitution. The contention that this Court has exclusive jurisdiction under section 4 e to decide the present dispute rests on two principal propositions: first, section 72 1 a imposes an obligation on the NCOP to facilitate public involvement in its legislative processes and those of its committees; and second, the obligation imposed by section 72 1 a is of a kind contemplated in section 4 e.

If both of these propositions are sound in law, the applicant is entitled to come directly to this Court. The first of these propositions, namely, that the provisions of section 72 1 a impose an obligation, is correct. It is plain from the wording of section 72 1 a that it imposes an obligation to facilitate public involvement. Considering the provisions of section 59 1 a , the National Assembly equivalent of section 72 1 a , the Supreme Court of Appeal in King and Others v Attorneys Fidelity Fund Board of Control and Another , 6 held that the section imposes an obligation on Parliament to facilitate public involvement in its legislative processes.

The conclusion that section 72 1 a imposes an obligation on the NCOP to facilitate public involvement in its legislative processes leads to the second proposition, namely, that the obligation to facilitate public participation is the kind of obligation contemplated in section 4 e. The merits of the second proposition must be considered at some length. This question is difficult to resolve. Section 4 e confers exclusive jurisdiction on this Court to decide disputes concerning a failure by Parliament or the President to fulfil a constitutional obligation.

The provisions of section 2 a contemplate that disputes concerning the constitutional validity of a statute or conduct of the President will be considered, in the first instance, by the High Courts or the Supreme Court of Appeal, which are given the power to declare any law or conduct that is inconsistent with the Constitution invalid, subject to confirmation by this Court. It may be invalid because its provisions are in conflict with a right in the Bill of Rights. Or it may be invalid because it was adopted in a manner that is inconsistent with the provisions of the Constitution.

What compounds the difficulty is that in a constitutional state like ours, where the Constitution is supreme, the Constitution imposes certain obligations on the exercise of legislative authority. But it can hardly be suggested that this Court has exclusive jurisdiction to decide the validity of a statute that violates those rights because in enacting that statute, Parliament has failed to fulfil its constitutional obligation to respect, protect, promote and fulfil rights in the Bill of Rights. Were this to be so, it would undermine the role of other courts. In fact it would be contrary to section 2 a , which contemplates that the Supreme Court of Appeal and the High Courts have the jurisdiction to consider the validity of an Act of Parliament.

The Supreme Court of Appeal or a High Court would have jurisdiction under section 2 a to consider the constitutional validity of the impugned statute. In the case of a law that infringes a right in the Bill of Rights, the primary source of the dispute is the breach of a right. This dispute flows directly from the infringement of a right in the Bill of Rights. Although, inevitably this means that Parliament has failed to comply with its constitutional obligation, this is not an obligation contemplated in section 4 e. It concerns the validity of the impugned law and not the failure to fulfil an obligation. Sections 5 and 2 a of the Constitution contemplate that such disputes will be considered in the first instance by the High Courts, which are given the power to declare laws invalid, subject to confirmation by this Court.

In doing so the High Court would not be deciding whether Parliament has failed to fulfil an obligation, but only whether the statute is consistent with the Bill of Rights. If the phrase is construed as applying to all questions concerning the constitutional validity of Acts of Parliament, it would be in conflict with the powers of the Supreme Court of Appeal and the High Courts to make orders concerning the validity of Acts of Parliament. In King , 13 the Supreme Court of Appeal had to consider whether it had jurisdiction to decide a constitutional challenge to a statute where the challenge was based on the alleged failure by the National Assembly to facilitate public involvement in its legislative and other processes as envisaged by section 59 1 a of the Constitution.

Section 4 e must be construed purposively and consistently with the nature of the jurisdiction of this Court in our constitutional democracy. This Court occupies a special place in our constitutional order. It is the highest court on constitutional matters and is the ultimate guardian of our Constitution and its values. The principle underlying the exclusive jurisdiction of this Court under section 4 is that disputes that involve important questions that relate to the sensitive areas of separation of powers must be decided by this Court only. Therefore, the closer the issues to be decided are to the sensitive area of separation of powers, the more likely it is that the issues will fall within section 4.

It follows that where a dispute will require a court to decide a crucial political question and thus intrude into the domain of Parliament, the dispute will more likely be one for the exclusive jurisdiction of this Court. It seems to me therefore that a distinction should be drawn between constitutional provisions that impose obligations that are readily ascertainable and are unlikely to give rise to disputes, on the one hand, and those provisions which impose the primary obligation on Parliament to determine what is required of it, on the other. In the case of the former, a determination whether those obligations have been fulfilled does not call upon a court to pronounce upon a sensitive aspect of the separation of powers.

An example of such a provision that comes to mind is a provision that requires statutes to be passed by a specified majority. The criteria set out are clear, and a failure to comply with them would lead to invalidity. When a court decides whether these obligations have been complied with, it does not infringe upon the principle of the separation of powers. It simply decides the formal question whether there was, for example, the two-thirds majority required to pass the legislation. By contrast, where the obligation requires Parliament to determine in the first place what is necessary to fulfil its obligation, a review by a court whether that obligation has been fulfilled, trenches on the autonomy of Parliament to regulate its own affairs and thus the principle of separation of powers.

This is precisely what the obligation comprehended in section 72 1 a does. While it imposes a primary obligation on Parliament to facilitate public involvement in its legislative and other processes, including those of its committees, it does not tell Parliament how to facilitate public involvement but leaves it to Parliament to determine what is required of it in this regard. A review by a court of whether Parliament has complied with its obligation under section 72 1 a calls upon a court to intrude into the domain of a principal legislative organ of the state.

Under our Constitution, this intrusion is reserved for this Court only. A construction of section 4 e which gives this Court exclusive jurisdiction to decide whether Parliament has complied with its constitutional obligation to facilitate public involvement in its legislative processes is therefore consistent with the principles underlying the exclusive jurisdiction of this Court.

An order declaring that Parliament has failed to fulfil its constitutional obligation to facilitate public involvement in its legislative process and directing Parliament to comply with that obligation constitutes judicial intrusion into the domain of the principle legislative organ of the state. Such an order will inevitably have important political consequences. Only this Court has this power. The question whether Parliament has fulfilled its obligation under section 72 1 a therefore requires this Court to decide a crucial separation of powers question and is manifestly within the exclusive jurisdiction of this Court under section 4 e of the Constitution.

Before leaving this topic, there is one matter to which I must refer. The national legislative authority vests in Parliament. If either of these democratic institutions fails to fulfil its constitutional obligation in relation to a bill, the result is that Parliament has failed to fulfil its obligation. I am therefore satisfied that the question whether the NCOP has failed to facilitate public involvement in its legislative processes concerns a dispute over whether Parliament has fulfilled a constitutional obligation as contemplated in section 4 e.

Only this Court has the jurisdiction to decide such a dispute. What falls to be considered next is whether it is competent under our constitutional order for declaratory relief to be granted by this Court in respect of the proceedings of Parliament. Is it competent for this Court to grant declaratory relief in respect of proceedings of Parliament? The obligation of Parliament to facilitate public involvement in its legislative and other processes, including those of its committees, raises the question of the competence of this Court to grant relief in respect of the proceedings of Parliament. The enforcement of the obligation to facilitate public involvement in the legislative processes of Parliament invariably requires this Court to interfere with the autonomy of the principal legislative organ of the state.

This interference infringes upon the principle of the separation of powers. Yet, as will appear later in this judgment, the enforcement of the obligation to facilitate public involvement in the law-making process is crucial to our constitutional democracy. In the light of this, it is important to resolve the question when this Court can and should intervene to enforce the obligation to facilitate public involvement in the law-making process. Apart from this, as pointed out earlier, when these proceedings were launched on 25 February , the Sterilisation Amendment Act was still in its bill form. Parliament had passed the Bill but it had not yet been signed by the President. It is therefore necessary to consider whether this Court had jurisdiction to consider the constitutional challenge relating to parliamentary proceedings in connection with the Sterilisation Amendment Act at the time when the constitutional challenge was launched.

It was against this background that the parties were called upon to submit argument on whether it is competent for this Court under our constitutional order to grant declaratory relief in respect of the proceedings of Parliament:. The national legislative process is set out in sections 73 to 82 of the Constitution. Broadly speaking it commences with the introduction of a bill in the National Assembly, consideration and passing of the bill by the National Assembly, consideration and passing of the bill by the NCOP, and consideration and signing of the bill by the President. The specific question presented in this case is whether this Court has jurisdiction to intervene in this legislative process and to grant declaratory relief to the effect that Parliament has failed to facilitate public involvement in relation to a bill.

Parliament has a very special role to play in our constitutional democracy — it is the principal legislative organ of the state. With due regard to that role, it must be free to carry out its functions without interference. Indeed the parliamentary process would be paralysed if Parliament were to spend its time defending its legislative process in the courts. This would undermine one of the essential features of our democracy: the separation of powers. The constitutional principle of separation of powers requires that other branches of government refrain from interfering in parliamentary proceedings.

This principle is not simply an abstract notion; it is reflected in the very structure of our government. The structure of the provisions entrusting and separating powers between the legislative, executive and judicial branches reflects the concept of separation of powers. They too must observe the constitutional limits of their authority. This means that the judiciary should not interfere in the processes of other branches of government unless to do so is mandated by the Constitution. But under our constitutional democracy, the Constitution is the supreme law.

It is binding on all branches of government and no less on Parliament. The question is whether the Constitution precludes this Court from intervening during any or all of the stages of the law-making process in order to enforce the obligation to facilitate public involvement. There are three identifiable stages in the law-making process, and these are foreshadowed in the questions on which the parties were called upon to submit argument: first, the deliberative stage, when Parliament is deliberating on a bill before passing it; second, the Presidential stage, that is, after the bill has been passed by Parliament but while it is under consideration by the President; and third, the period after the President has signed the bill into law but before the enacted law comes into force.

The applicants contended that section 4 e empowers this Court to intervene during all three stages. What must be emphasised at the outset is that in this case we are concerned with a constitutional challenge based on an alleged failure to facilitate public involvement in the legislative processes of Parliament as required by section 72 1 a of the Constitution. The questions posed by the Chief Justice must therefore be answered with reference to this specific challenge to the extent required by the facts of this case.

It will be convenient to consider, first, whether this Court can interfere with the legislative process when the bill is before the President; second, after the President has signed the bill into law but before it comes into force; and third, during the deliberative process. Is it competent for this Court to grant declaratory relief after a bill has been passed by Parliament but before it is signed by the President?

The express provision of the Constitution that is relevant in this context and which limits the jurisdiction of this Court is section 4 b. That section provides:. Section 4 b confers exclusive jurisdiction on this Court to decide the constitutionality of any parliamentary or provincial bill. Thus while the section confers exclusive jurisdiction on this Court to consider the constitutional validity of a national or provincial bill, this power is expressly limited to a challenge brought by the President or a Premier and in circumstances contemplated in section 79 or of the Constitution.

Counsel for the applicant nevertheless submitted that it is competent for this Court to grant relief after Parliament has passed a bill but before the President has signed the bill. To surmount the hurdle presented by the limited power of this Court to decide the constitutionality of a parliamentary or provincial bill under section 4 b , counsel for the applicant advanced two propositions. First, there was a conflict between the provisions of sub-sections 4 b and 4 e. This conflict arises because section 4 b permits only the President or the Premier to approach this Court in respect of a passed bill.

By contrast, it was submitted, section 4 e is concerned with failure to fulfil a constitutional obligation, and it imposes no restriction on the identity of the applicant or the stage of the challenge. The submission by counsel ignores the provisions of section 79 of the Constitution to which section 4 b refers. The provisions of section 4 b must be read with section 79 in order to determine the scope of the jurisdiction of this Court to decide the constitutionality of a bill. It is plain from the provisions of section 79 3 that the President has the authority to raise the constitutionality of a bill on both procedural and substantive grounds. The President may raise as the source of his or her reservation a procedural matter.

It is necessary to stress here that a complaint relating to failure by Parliament to facilitate public involvement in its legislative processes after Parliament has passed the bill will invariably require a court to consider the validity of the resulting bill. If the Court should find that Parliament has not fulfilled its obligation to facilitate public involvement in its legislative processes, the Court will be obliged under section 1 a to declare that the conduct of Parliament is inconsistent with the Constitution and therefore invalid.

This would have an impact on the constitutionality of the bill that is a product of that process. The purpose and effect of litigation that is brought in relation to a bill after it has been passed by Parliament is therefore to render the bill passed by Parliament invalid. This is precluded by the express provisions of section 4 b. The question that falls to be determined is whether the provisions of section 4 e can be invoked while the bill is under consideration by the President. It is here that the interrelation between the provisions of section 4 e and section 4 b becomes relevant. There are two principles of interpretation that are relevant in this regard.

The first is that where there are provisions in the Constitution that appear to be in conflict with each other, the proper approach is to examine them to ascertain whether they can reasonably be reconciled. Provisions in the Constitution should not be construed in a manner that results in them being in conflict with each other. Rather, they should be construed in a manner that harmonises them. The other principle of construction to keep in mind in this regard is that where there are two provisions in the Constitution dealing with the same subject, with one provision being general and the other being specific, the general provision must ordinarily yield to the specific provision.

Therefore, if a general provision is capable of more than one interpretation and one of the interpretations results in that provision applying to a special field which is dealt with by a special provision, in the absence of clear language to the contrary, the special provision must prevail should there be a conflict. The question then is whether the provisions of sections 4 b and 4 e are capable of being reconciled. Although both these provisions deal with the exclusive jurisdiction of this Court, each deals with a specific subject matter.

It confers jurisdiction on this Court to decide whether Parliament or the President has failed to fulfil a constitutional obligation. It regulates constitutional challenges that seek to enforce the fulfilment of constitutional obligations and contains no restrictions as to the person or the stage at which a challenge may be launched. By contrast, section 4 b confers exclusive jurisdiction on this Court to decide the constitutional validity of any parliamentary or provincial bill but expressly limits such jurisdiction to the specific instances set out in sections 79 and of the Constitution.

The provisions of section 4 b therefore specifically deal with challenges to a bill that has been passed by Parliament or a provincial legislature. Now I think it can fairly be accepted that section 4 e covers a wider field in that a constitutional obligation may relate to the process that Parliament is required to follow before passing a bill, such as the obligation to facilitate public involvement in its processes as contended by the applicants. By contrast, the provisions of section 4 b are specifically limited to constitutional challenges to parliamentary or provincial bills. It seems to me therefore that a constitutional challenge under section 4 e whose purpose and effect is to render invalid a bill will be barred by section 4 b.

In this sense, the scope of the provisions of section 4 e is circumscribed by the specific provisions of section 4 b , which limit a constitutional challenge to a bill to the more specific circumstances contemplated in section 79 or It follows therefore that the provisions of section 4 b and section 4 e can be harmonised by understanding the provisions of section 4 b as limiting the scope of section 4 e when the purpose and effect of a constitutional challenge under section 4 e is to render a bill invalid. This construction of section 4 e is consistent with the scheme of the Constitution. This scheme entrusts the President with the power to raise with this Court the constitutionality of a parliamentary bill.

The decision to provide the President with the power to decline to assent to a bill and to challenge its constitutionality was based on the conviction that the power to make laws must be carefully circumscribed. In addition, the constitutional scheme contemplates that challenges to the constitutional validity of a bill passed by Parliament must await the completion of the legislative process. During this process, the rights of the public are safeguarded by the President who has the authority to challenge the constitutionality of a bill consistent with his or her duty to uphold, defend and respect the Constitution. Once the process is complete, the public and interested groups may challenge the resulting statute.

This scheme seeks to ensure that judicial intervention in the law-making process is kept to the minimum; hence it is limited to challenges by the President. Counsel for the applicant contended that by its nature the duty to facilitate public involvement in the law-making process requires that it be enforced there and then. Its delay is its denial. The argument does not take sufficient account of the role of Parliament and the President in the law-making process. As pointed out earlier, the President has a constitutional duty to uphold, defend and respect the Constitution. The role of the President in the law-making process is to guard against unconstitutional legislation.

To this end, the President is given the power to challenge the constitutionality of the bill. The President represents the people in this process. The members of the National Assembly perform a similar task and have a similar obligation. Thus during the entire process, the rights of the public are protected. The public can always exercise their rights once the legislative process is completed. If Parliament and the President allow an unconstitutional law to pass through, they run the risk of having the law set aside and the law-making process commence afresh at great cost.

The rights of the public are therefore delayed while the political process is underway. They are not taken away. I conclude therefore that after Parliament has passed a bill and before the President has assented to and signed the bill, it is not competent for this Court to grant any relief in relation to the bill, save at the instance of the President and in the limited circumstances contemplated in section In its notice of motion the applicant sought an order declaring that the conduct of the NCOP and the provincial legislatures was invalid and any other consequential relief.

The effect of a successful constitutional challenge to the Sterilisation Amendment Bill would be to render that Bill invalid. This Court would have been precluded by the provisions of section 4 b read with section 79 from making an order declaring the Sterilisation Amendment Bill invalid. The fact that the Bill has since been enacted into law and this Court has jurisdiction to pronounce on the constitutional validity of the Sterilisation Amendment Act matters not. The question whether this Court has jurisdiction must be determined as at the time when the present proceedings were instituted and not at the time when the Court considers the matter.

The crucial time for determining whether a court has jurisdiction is when the proceedings commenced. It follows therefore that the challenge to the Sterilisation Amendment Bill as enacted into law must be dismissed. Nothing further need be said about it. That brings us to the question whether it is competent for this Court to grant relief once the President has signed a bill into law but before it has been brought into operation.

This was the position with regard to the remaining legislation when the present challenge was launched. Is it competent for this Court to grant relief in respect of an Act of Parliament that has not yet been brought into force? The express provision of the Constitution which caters for this eventuality is contained in section 80, which provides:. Assembly; and. This provision must be construed in the light of the powers of this Court under section 2 a , which empowers this Court to make an order concerning the constitutional validity of an Act of Parliament.

These are very wide powers indeed. In Khosa and Others v Minister of Social Development and Others; Mahlaule and Others v Minister of Social Development and Others , 49 this Court was concerned with, among other issues, whether it could consider a provision which had not yet been brought into operation. The Court held that it has jurisdiction to consider provisions in a statute that have not yet been brought into operation. For its holding, the Court relied upon the provisions of section 2 a. It added that in the case of a provision that has not yet been brought into force, the legislative process is complete and there is a duly enacted Act of Parliament.

It is true, in Khosa , this Court did not consider the provisions of section The purpose of section 80 is to make provision for abstract review at the instance of members of the National Assembly. It merely regulates the conditions under which members of the National Assembly may challenge an Act of Parliament. It does not preclude a member of the public from challenging a provision of an Act of Parliament that has been promulgated during the period of thirty days within which members of the National Assembly are required to approach this Court to challenge all or part of the Act of Parliament. The fact that the statute may not have been brought into operation cannot deprive this Court of its jurisdiction.

There is nothing in the wording of section 80 that precludes this Court or any other court from considering the validity of an Act of Parliament at the instance of the public. Nor is there anything in the scheme for the exercise of jurisdiction by this Court that precludes it from considering the constitutional validity of a statute that has not yet been brought into operation. The legislative process is complete, and there can be no question of interference in such a process. Once a bill is enacted into law, this Court should consider its constitutionality. I conclude therefore that it is competent for this Court to grant relief in respect of the proceedings of Parliament after the bill has been enacted into law but before it has been brought into force.

It now remains to consider the last question posed in the directions, namely, whether it is competent for this Court to grant relief in relation to the proceedings of Parliament before Parliament has passed the bill. Is it competent for this Court to issue a declaratory relief in respect of parliamentary proceedings before Parliament has concluded its deliberations on a bill? The question whether it is competent for this Court to grant a declaratory relief to the effect that Parliament has failed to comply with its constitutional obligation to facilitate public involvement in the legislative process before the parliamentary legislative process is completed is more complex.

There is no express constitutional provision that precludes this Court from doing so. On the one hand, it raises the question of the competence of this Court to interfere with the autonomy of Parliament to regulate its internal proceedings, and on the other, it raises the question of the duty of this Court to enforce the Constitution, in particular, to ensure that the law-making process conforms to the Constitution. Courts in other jurisdictions, notably in the Commonwealth jurisdictions, have confronted this question. They have done this out of comity and, in particular, out of respect for the principle of separation of powers.

But at the same time they have claimed the right as well as the duty to intervene in order to prevent the violation of the Constitution. The basic position appears to be that, as a general matter, where the flaw in the law-making process will result in the resulting law being invalid, courts take the view that the appropriate time to intervene is after the completion of the legislative process. The appropriate remedy is to have the resulting law declared invalid. Where immediate intervention is called for in order to prevent the violation of the Constitution and the rule of law, courts will intervene and grant immediate relief. But intervention will occur in exceptional cases, such as where an aggrieved person cannot be afforded substantial relief once the process is completed because the underlying conduct would have achieved its object.

What courts should strive to achieve is the appropriate balance between their role as the ultimate guardians of the Constitution and the rule of law including any obligation that Parliament is required to fulfil in respect of the passage of laws, on the one hand, and the respect which they are required to accord to other branches of government as required by the principle of separation of powers, on the other hand. That said, however, it is not necessary to reach any firm conclusion on whether it is competent for this Court to interfere in the deliberative process of Parliament to enforce the duty to facilitate public involvement. Although the parties were called upon to address this question, none of the statutes involved in this case were at a deliberative stage of Parliament when this litigation commenced.

Notwithstanding the importance of this question, I consider that it is not desirable to answer it in these proceedings. It is a question that must be answered with regard to a specific challenge raising it pertinently. This is not such a case. It is better to leave it open for consideration when an occasion to consider it arises. It now remains to consider the main item on our agenda, namely, whether the NCOP and the provincial legislatures have fulfilled their obligation to facilitate public involvement in their respective legislative processes as required by the Constitution. I have already concluded that this complaint, so far as it relates to the Sterilisation Amendment Act, must be dismissed.

Did the NCOP and the provincial legislatures facilitate public involvement in their respective legislative processes as required by the Constitution? What do the public involvement provisions require? The requirement to facilitate public involvement in the legislative processes of the NCOP is governed by section 72, which provides:. Identical duties are imposed on the National Assembly by section 59 and on the provincial legislatures by section The question is what is the nature and scope of the duty comprehended by these provisions and to what extent is it justiciable.

The contentions of the parties. The applicant contended that the public involvement provisions require that public hearings must be held in respect of all legislation under consideration by a legislature whether at the national or provincial level. In the alternative, it was contended that a legislature should hold public hearings whenever there is evidence that a bill under consideration is controversial. The applicant submitted that in this case, public hearings should have been held in respect of each Bill, in each province and by the NCOP sitting in plenary session. For their part, Parliament and the provincial legislatures, as well as the Minister of Health, conceded that the public involvement provisions require public participation in the legislative process but contended that what is required is some opportunity to make either written or oral submissions on the legislation under consideration.

It is therefore common cause between all the parties to these proceedings that sections 72 1 a and 1 a require public participation in the legislative processes of the NCOP and the provincial legislatures. However, the parties differ on the nature and scope of the duty to facilitate public involvement. The contentions of the parties require this Court to consider the meaning and scope of the duty to facilitate public involvement. This duty must be construed and understood in the light of: a the constitutional role of the NCOP in the national legislative process and, in particular, its relationship to the provincial legislatures; b the right to political participation under international and foreign law; and c the nature of our constitutional democracy.

All of these provide the context within which to determine the meaning and scope of the duty to facilitate public involvement in legislative processes. The role of the NCOP in the national legislative process. It does this mainly by participation in the national legislative process and by providing a national forum for public consideration of issues affecting the provinces. Meanwhile, a second parliamentary body known as the Bundestag , like the National Assembly, is elected to represent the people as a whole. The members of the Bundesrat are members of the state governments and are appointed and subject to recall by the states. The procedure for enacting legislation under our Constitution similarly requires institutional co-operation and communication between national and provincial legislatures.

Without such co-operation, the national legislative program may be severely compromised. Indeed, the Constitution contemplates that provincial interests will be taken into account in the national law-making process. The NCOP institutionalises the principle of co-operation and communication by involving the nine provinces directly in the national legislative process and other national matters. The local government is also involved indirectly in that local government may designate up to ten part-time, non-voting representatives to participate in the NCOP proceedings.

Indeed, the principle of institutional co-operation and communication finds expression in the principle of co-operative government to which chapter 3 of the Constitution is devoted. The role of the NCOP should be understood in the light of the constitutional principle of co-operative government, which shares similarities with the principle of Bundestreue. Both the manner in which the NCOP delegates are selected and the manner in which they vote on legislation affecting the provinces provide the provinces with a significant voice in national legislation.

The NCOP consists of ten delegates from each of the nine provinces, including six permanent delegates and four special delegates. The Premier of the province, or his or her designee, serves as one of the special delegates. Each delegation votes on the basis of a mandate given by its provincial legislature. This is clear from the Constitution, which provides that the provincial legislatures have the responsibility to confer authority on their delegations to cast votes on their behalf in the NCOP.

Voting by delegation reflects accurately the support of the different provincial legislatures for a measure under consideration. The relationship between the NCOP and the provincial legislatures. As pointed out earlier, in relation to section 76 bills, the NCOP delegations vote on the basis of mandates given to them by their respective provincial legislatures. Naturally, this will require provincial legislatures to study and deliberate on the bill in question so as to give informed mandates. And in doing so, provincial legislatures no doubt take part in the national legislative process. Neither Parliament nor the nine provinces contended otherwise.

The allegation by the applicant that the provinces did not comply with the provisions of section 1 a in connection with the health legislation must be understood in the light of this relationship between the NCOP and the provincial legislatures. The duty to facilitate public involvement in the legislative process is an aspect of the right to political participation. International and regional human rights instruments provide a useful guide in understanding the duty to facilitate public involvement in the context of our country. I consider it necessary therefore to refer to the right to political participation as understood in international law. The right to political participation under international and foreign law.

The right to political participation is a fundamental human right, which is set out in a number of international and regional human rights instruments. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. Both articles 19 and 25 guarantee not only the positive right to political participation, but simultaneously impose a duty on states to facilitate public participation in the conduct of public affairs by ensuring that this right can be realised.

Taken together, they seek to ensure that citizens have the necessary information and the effective opportunity to exercise the right to political participation. Since the adoption of the ICCPR, various regional human rights instruments and declarations have reaffirmed the right to political participation. The African Charter is more specific than the ICCPR in spelling out the obligation of states parties to ensure that people are well informed of the rights in the African Charter. The relevant articles are articles 9, 13 and 25 which provide:. Every individual shall have the right to receive information. Every individual shall have the right to express and disseminate his opinions within the law. Article Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

States parties to the present Charter shall have the duty to promote and ensure through teaching, education and publication, the respect of the rights and freedoms contained in the present Charter and to see to it that these freedoms and rights as well as corresponding obligations and duties are understood. This is also a necessary condition for the full and effective exercise of democracy. Promoting and fostering diverse forms of participation strengthens democracy. Nature and scope of the right. The precise nature and scope of the international law right to participate in the conduct of public affairs is a matter for individual states to determine through their laws and policies.

That minimum should never require less of a government than provision for meaningful exercise of choice by citizens in some form of electoral process permitting active debate on a broad if not unlimited range of issues. But it could require much more. As the conditions of humanity alter and as ideas of justice and equity evolve, so do concepts of rights take on a new texture and meaning. But more importantly, the right to political participation must be left to gather its meaning and content from historical and cultural experience. The right to political participation includes but is not limited to the right to vote in an election.

That right, which is specified in article 25 b of the ICCPR, represents one institutionalisation of the right to take part in the conduct of public affairs. The broader right, which is provided for in article 25 a , envisages forms of political participation which are not limited to participation in the electoral process. It is now generally accepted that modes of participation may include not only indirect participation through elected representatives but also forms of direct participation.

This right of direct participation is supported by paragraph b. Citizens also participate directly in the conduct of public affairs when they choose or change their constitution or decide public issues through a referendum or other electoral process conducted in accordance with paragraph b. Citizens may participate directly by taking part in popular assemblies, which have the power to make decisions about local issues or about the affairs of a particular community and in bodies established to represent citizens in consultation with government. Citizens also take part in the conduct of public affairs by exerting influence through public debate and dialogue with their representatives or through their capacity to organize themselves.

This participation is supported by ensuring freedom of expression, assembly and association. The right to political participation can therefore be realised in many ways. Democratic systems and theories may be more or less focused upon representation and may balance the division of powers between central and local authorities differently. For some theories on democracy, the right to vote for representatives is satisfactory. Other theories are more expansive and place a higher value on participatory elements in society. The idea of allowing the public to participate in the conduct of public affairs is not a new concept.

This is a participatory consultation process that was, and still is, followed within the African communities. It is used as a forum to discuss issues affecting the community. This traditional method of public participation, a tradition which is widely used by the government, is both a practical and symbolic part of our democratic processes. It is a form of participatory democracy. Neither is the idea of allowing the public to participate in the parliamentary decision-making process a new concept. The right to political participation has deep historical roots, dating back to the Middle Ages.

More recently, a growing number of national Constitutions, in particular those adopted since the entry into force of the ICCPR, expressly embrace the principle of participatory democracy. Several, like our Constitution, include provisions that promote participation in law-making, whether through written petitions, oral hearings or other mechanisms of public involvement.

To make this decree effective the citizen may. Conclusions from international law and foreign law. The general right to participate in the conduct of public affairs includes engaging in public debate and dialogue with elected representatives at public hearings. But that is not all; it includes the duty to facilitate public participation in the conduct of public affairs by ensuring that citizens have the necessary information and effective opportunity to exercise the right to political participation.

While the right to political participation in international law can be achieved in multiple ways, it is clear that this right does not require less of a government than provision for meaningful exercise of choice in some form of electoral process and public participation in the law-making process by permitting public debate and dialogue with elected representatives. In addition, this right is supported by the right to freedom of expression which includes the freedom to seek, receive and impart information.

In our country, the right to political participation is given effect not only through the political rights guaranteed in section 19 of the Bill of Rights, as supported by the right to freedom of expression but also by imposing a constitutional obligation on legislatures to facilitate public participation in the law-making process. The duty to facilitate public involvement in the legislative process under our Constitution must therefore be understood as a manifestation of the international law right to political participation. Public involvement in the legislative and other processes of legislatures of our country is a more specific form of political participation than the participation in the conduct of public affairs that is contemplated by article 25 of the ICCPR.

Thus 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. Our struggle was inspired in particular by our vision of a nonracial and democratic South Africa in which the people shall govern. A key aspect of our vision of democracy was obviously the right to vote.

The idea that every citizen, regardless of their race, colour or creed, was entitled to stand for elections and to vote in them. But our vision of democracy also went beyond simply voting every five years. We were also inspired by the idea of a participatory democracy as well as a system in which the people of our country would on an on-going basis participate in and have a say in every aspect of the lives in workplaces, communities, streets and schools.

This is reflected in the very nature of our constitutional democracy. The nature of our constitutional democracy. Through these provisions, the people of South Africa reserved for themselves part of the sovereign legislative authority that they otherwise delegated to the representative bodies they created. Our Constitution was inspired by a particular vision of a non-racial and democratic society in which government is based on the will of the people. 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 nature of our democracy must be understood in the context of our history. This concept ensured that the people took part in community structures that were set up to fight the system of apartheid. This emphasis on democratic participation that was born in the struggle against injustices is strongly reflected in our new democratic Constitution and the entrenchment of public participation in Parliament and the legislatures. The Commission on Public Participation reiterated, through the voices of the people of South Africa, the meaning and importance of public participation in the context of our constitutional democracy. The Commission noted that. The Constitution makes Parliament and the provincial legislatures, as well as municipal councils, the primary democratic institutions in South Africa.

The people have a voice in these institutions, not only through elected representatives, but also through access to committee meetings and deliberations. The people also have the right to speak and make representations to committees and meetings, which is in line with the Constitution, which states that all people shall be entitled to take part in the administration of the country. In the overall scheme of our Constitution, the representative and participatory elements of our democracy should not be seen as being 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. It encourages citizens of the country to be actively involved in public affairs, identify themselves with the institutions of government and become familiar with the laws as they are made.

It enhances the civic dignity of those who participate by enabling their voices to be heard and taken account of. It promotes a spirit of democratic and pluralistic accommodation calculated to produce laws that are likely to be widely accepted and effective in practice. It strengthens the legitimacy of legislation in the eyes of the people. Finally, because of its open and public character it acts as a counterweight to secret lobbying and influence peddling.

Participatory democracy is of special importance to those who are relatively disempowered in a country like ours where great disparities of wealth and influence exist. Therefore our democracy includes as one of its basic and fundamental principles, the principle of participatory democracy. The democratic government that is contemplated is partly representative and partly participatory, is accountable, responsive and transparent and makes provision for public participation in the law-making processes. Parliament must therefore function in accordance with the principles of our participatory democracy. It is against this background that the nature and scope of the duty to facilitate public involvement must be construed and understood.