CASAC MEDIA STATEMENT
Roundtable on Parliament
26 June 2015
The Council for the Advancement of the South African Constitution (CASAC) convened a gathering of a small group of people with significant knowledge of and experience in Parliament to consider the challenges facing this institution in 2015. We summarise some of the key issues and concerns that emerged during this meeting which took place in Cape Town on 18 June 2015. This does not however suggest the unanimity of views of the participants.
In diagnosing the current crisis confronting Parliament it needs to be understood that it is primarily a political problem with constitutional undertones, rather than a legal one. An understanding of the constitutional framework, particularly in relation to the separation of powers, is however important to contextualise and understand the political impasse.
There is a distinct trust-deficit between the political parties in Parliament which is rendering the institution dysfunctional. There is a lack of conventions or implicit agreements that allow for and facilitate the functioning of Parliament as a contested political terrain. This trust-deficit has led to parties being over-zealous and combative in their dealings with one another. Rigorous debate on substantive issues has often been eschewed for political skirmishes over procedural and ‘rule-based’ issues. Parties need to be afforded the deliberative space to execute their constitutional mandate to provide a forum for national debate, hold the executive to account and pass legislation.
Practices, conventions and implicit agreements among parties have not matured to a level that enables them to be used to overcome obstacles. Such implicit agreements should be developed over time, drawing on tested concepts such as ‘sufficient consensus’, to assist in the smooth functioning of Parliament. In our system of government, the majority party rules both the executive and the legislature, and means need to be found to balance the power of the majority with the need to respect the rights of smaller parties.
Parliament has a duty to respect and protect the rights of all parties in Parliament as they legitimately represent the interests of the electorate. Whilst the Constitution envisions a deliberative and inclusive democracy, where co-operation and compromise should feature prominently, the rights of the majority to rule cannot also be undermined. That is the very essence of a democracy.
These inherently political issues will have broader implications outside of Parliament. The effect that a dysfunctional Parliament will have on various other institutions and democratic processes generally should not be under-estimated. Parties need to consider that conflict in Parliament may have unintended consequences in terms of social conflict, especially at election times. Parties should therefore pursue a strategy of political risk mitigation by modifying their behaviour in the best interest of the country and its democratic foundations.
Concern was expressed about the diminished stature of Parliament especially in relation to the executive. In the recent past we have seen an imbalance between the role of the executive and the legislature in the conduct of parliamentary affairs with the potential to undermine the independence of the legislature. The diminished stature of Parliament is further illustrated by factors relating to the role of the Presiding Officers. This relates both to deference to the executive as well as the ability to exercise functions in a politically neutral and impartial manner that commands the respect of all political parties. Parliament needs to demonstrate its authority as an equal, distinct and independent arm of the state alongside the executive and the judiciary.
There was also a focus on the courts being drawn into the quagmire of dysfunctional politics, the “judicialisation” of political discourse, and the failure of Parliament to resolve its internal issues. Litigation is sometimes employed as an alternative to seeking viable political solutions. This has the effect of not only rendering Parliament irrelevant, but weakens the courts by involving them in matters perceived to be outside their jurisdiction. The courts being called upon to make findings on the use of ‘unparliamentary language’ is a particular example of where it may be inappropriate for the courts to usurp the powers of a Presiding Officer. However the right and indeed duty of the courts to be the ultimate arbiters of constitutional issues was emphasised.
It was agreed that a re-evaluation of the role of Parliament is required. The recommendations of various studies done over the years including the 2009 Report of the Independent Panel Assessment of Parliament should be re-visited.
It was also agreed that renewed attention should be paid to public awareness and literacy about Parliament. A tendency has arisen for the public to be more concerned with individual politicians rather than the institutions they serve. The implications of the failure to mitigate this institutional damage must be addressed.
The role of constituency offices needs to be reviewed. They should be Parliamentary rather than party political offices and need to be treated as such especially as they are funded by Parliament. This, coupled with regular reporting by Members of Parliament to their constituencies, will enhance public awareness of what Parliament does and how citizens can meaningfully engage with the institution.
CASAC was mandated to commission and conduct further targeted research on discrete issues, and the participants agreed to reconvene in due course to consider these research reports.
The meeting was attended by Cathi Albertyn, Firoz Cachalia, Richard Calland, Hugh Corder, Judith February, Frene Ginwala, Kasper Hahndiek, Sindiso Mfenyana, Lawson Naidoo, Sybil Seaton, Max Sisulu, Raenette Taljaard, Ben Turok, Leon Wessels.
Statement issued by Lawson Naidoo, CASAC, June 30 2015
