As seductive as certain perspectives of international law may appear to those who disagree with the outcome of the interpretative exercise conducted by this Court in the contempt judgment, sight must not be lost of the proper place of international law, especially in respect of an application for rescission. The approach that my Brother adopts may be apposite in the context of an appeal, where a court is enjoined to consider whether the court a quo erred in its interpretation of the law. Although it should be clear by now, I shall repeat it once more: this is not an appeal, for this Court’s orders are not appealable. I am deeply concerned that seeking to rely on articles of the ICCPR as a basis for rescission constitutes nothing more than sophistry.
Should the speaker of the South African parliament be impartial? Should he or she ceremoniously distance him or herself from the party he or she belongs to after election as speaker in order to avoid a perception of bias and unfairness? Should the speaker resign as a member of the party’s caucus and escape its discipline?
Or should the speaker serve in a partisan capacity to advance the interests and political agenda of the majority party in parliament in order to promote the interests of the majority of voters? Should the speaker use his or her power to shield the members of the executive from the partisan attacks and questions from the opposition?
The text of the South African Constitution does not give an explicit answer these questions. But, as I point out below, the Constitutional Court has strongly suggested our Constitution requires adherence to the former rather than the latter model for the speaker.
The tradition in Westminster style parliaments is that a speaker cuts all ties with the party he or she belongs to after elevation to speaker and serves in a non-partisan and absolutely impartial manner to serve the interest of all the members of parliament (so serving the interests of all voters – not only those who voted for the governing party).
However, speakers in other systems serve in a more partisan capacity. For example, the speaker of the US House of Representatives is actively involved in advancing the interests and legislative agenda of the majority party (although he or she seldom preside over debates).
In terms of section 52(1) of the South African Constitution (read with Schedule 3) the members of the national assembly (NA) must elect a speaker in a secret ballot from among its members. Section 52(4) also allows the members of the NA to remove a speaker from office by adoption of a motion to that effect.
Only a member of the NA can serve as speaker. Given the electoral system through which members of the NA are elected, this means that the speaker must belong to one of the political parties represented in the NA.
In terms of the rules of the NA the speaker has considerable powers. He or she is the administrative head of parliament and either the speaker or another presiding officer preside over debates in the NA. The speaker has final authority over the interpretation and application of the rules of the NA (subject to control by the judiciary). He or she is also allowed to give a ruling or frame a rule in respect of any eventuality for which these rules do not provide.
In terms of section 90 the speaker may also (in very exceptional circumstances) serve as acting president of the country until a new president is elected.
As the Constitutional Court pointed out in Oriani-Ambrosini v Sisulu our Constitution requires MPs to make decisions (usually through majority vote) to pass legislation; adopt resolution; determine the time and duration of the sittings of the Assembly; elect a speaker and a deputy speaker; elect officers to assist the speaker; remove a speaker; and determine its processes through the making of rules.
In a democratic system of government, the members of the majority party therefore have the power to decide whether any of these decisions are passed or not (unless super majorities are required for a decision in which case the support of several parties may be required). It is the essence of majority rule that the majority party has a conclusive say in the decisions taken by parliament.
This does not necessarily mean that the South African Constitution envisages a system in which only the members of the majority party receive a fair chance to state their views and to influence decisions. There is a difference between the principle that the majority party rule when important decisions are taken and the principle that the majority party rule during deliberations that may eventually lead to a majority decision.
As Sachs J stated in Democratic Alliance v Masondo: “
[T]he Constitution does not envisage a mathematical form of democracy, where the winner takes all until the next vote-counting exercise occurs. Rather, it contemplates a pluralistic democracy where continuous respect is given to the rights of all to be heard and have their views considered…
Because the South African Constitution establishes an “open and deliberative” form of democracy it emphasises the need for dignified and meaningful participation by all MPs in the activities of parliament. As Sachs explained our form of democracy:
is calculated to produce better outcomes through subjecting laws and governmental action to the test of critical debate, rather than basing them on unilateral decision-making. It should be underlined that the responsibility for serious and meaningful deliberation and decision-making rests not only on the majority, but on minority groups as well. In the end, the endeavours of both majority and minority parties should be directed not towards exercising (or blocking the exercise) of power for its own sake, but at achieving a just society where, in the words of the Preamble, ‘South Africa belongs to all who live in it…’
There are good reasons why the Constitution does not (in theory) allow the majority party to use its majority or its control over decisions such as who should be elected speaker, to silence the voices of those MPs who represent the millions of voters who have not voted for the majority party.
As Chief Justice Mogoeng pointed out in the Oriani-Ambrosini judgment:
South Africa’s shameful history is one marked by authoritarianism, not only of the legal and physical kind, but also of an intellectual, ideological and philosophical nature. The apartheid regime sought to dominate all facets of human life. It was determined to suppress dissenting views, with the aim of imposing hegemonic control over thoughts and conduct, for the preservation of institutionalised injustice. It is this unjust system that South Africans, through their Constitution, so decisively seek to reverse by ensuring that this country fully belongs to all those who live in it.
The Constitution is (at least partly) aimed at preventing a recurrence of the horrors of the apartheid past. Having learnt from this past, the drafters of the Constitution also sought to prevent any recurrence of the undemocratic practices that were embedded in the apartheid state and helped to sustain it for so long. That is why the Constitution prohibits the suppression of dissent, criticism or protest against those in government.
What these Constitutional Court judgments emphasise is that ours is a democracy that values fair and equal participation in debate and in the processes that lead to the decisions that are ultimately taken by parliament. While the majority ultimately decides what the decision is, the minority must have a fair opportunity to take part in the deliberations that lead to a decision.
The judgments suggest that the rules of parliament should be formulated clearly and with sufficient precision and in in enough detail to prevent the rules from being abused by the presiding officer. The rules must be aimed at ensuring fair and meaningful participation of all MPs in the debates in parliament and in the other activities of parliament.
I suspect the rules as currently employed by presiding officers are far too vague and open to abuse to fulfil this basic Constitutional requirement. For example, the practice of ruling that statements must be withdrawn because they are “unparliamentary” has led in the past to the silencing of dissent and the asking of difficult questions. Anything can in theory be ruled to be “unparliamentary”, which means it is a term that can be abused to silent dissent.
The Constitutional Court judgments also suggest that our Constitution requires the speaker or any other presiding officer to act fairly and impartially at all times – also when he or she presides over a debate in parliament. Not only must the speaker be impartial and unbiased, he or she must act in a manner that would avoid the apprehension of bias or partisanship on his or her part.
If a speaker or other presiding officers are not impartial and are not manifestly seen to be impartial, parliament will not be able to function in a manner that promotes pluralistic democracy (the kind of democracy in which dissenting voices are heard loud and clear). This would be in conflict with the jurisprudence of the Constitutional Court.
However, this leaves the speaker of the South African parliament in a difficult position. As the speaker is elected to the NA on a party list and can easily be removed from the NA by his or her party, there will be strong pressure on him or her to serve the party and the executive and not the parliament as an institution.
In our system it is therefore very difficult for a speaker to be truly impartial and unbiased. For a speaker who is a member of the governing party this pressure will be even more severe as section 5.4 of the Constitution of ANC states that:
ANC members who hold elective office in any sphere of governance at national, provincial or local level are required to be members of the appropriate caucus, to function within its rules and to abide by its decisions under the general provisions of this Constitution and the Constitutional structures of the ANC.
Whether this section of the ANC Constitution is compatible with the Constitutional Court judgments mentioned above (as well as theRamakatsa judgment) is open to debate. But as long as the Constitutional Court does not declare the section unconstitutional, it places any speaker from the governing party in the impossible position of having to serve the Constitution and to act impartially while also enforcing the decisions of the party.
I therefore have sympathy with the speaker. She has to serve two conflicting masters – something that is currently impossible to do.
For this reasons I believe the rules of the NA (and if needs be the provisions of the Constitution) should be reviewed to allow for the speaker to become a non-partisan and impartial officer of parliament as a whole, serving to protect and promote the pluralistic democracy in a manner that will ultimately be to the benefit of all South Africans.
The rules should prohibit a speaker from being a member of his or her party’s caucus and from serving in any position in his or her party. The rules should also protect the speaker by prohibiting his or her party from removing him or her from parliament for the duration of the parliament.
If the rules are not amended to secure the impartiality and independence of the speaker, parliament will continue to provide us with strident but ultimately vacuous entertainment – to the detriment of our democracy.