Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
20 November 2019

Why is a DA MP demanding that the President act unconstitutionally?

Last week Democratic Alliance (DA) MP, Dean Macpherson, wrote an opinion piece in the Daily Maverick in which he repeated his request to President Cyril Ramaphosa not to sign into law the Copyright Amendment Bill recently passed by Parliament. Macpherson further implored the President to refer the Bill back to Parliament, presumably to fix various alleged “flaws” in the Bill as identified by the DA. The problem is that Macpherson was asking the President to do something unconstitutional and unlawful, something that would almost certainly amount to an impeachable offence.

The South African Constitution bestows only a weak veto power on the country’s President. In countries where the President is given a strong veto power, he or she is entitled to refuse to sign a Bill into law if he or she disagrees politically with the Bill or believes that it is flawed in some other way. In some jurisdictions the head of the executive is even given a line item veto, allowing him or her to veto specific provisions in the law while agreeing to others.

Usually, such a strong veto power is tempered by an override mechanism. This is necessary because the veto power constitutes a drastic check on the power of the legislature and may implicate the separation of powers. For example, in the United States the President has a strong veto power (but no line item veto), which can be overridden if both houses of Parliament again pass the Bill, but now with at least a two thirds majority.

In South Africa the President is not allowed to refuse to sign a Bill into law because he or she disagrees politically with the Bill or merely because he or she believes that it is flawed in some other way. Neither is he or she allowed – as Mr Macpherson demanded – to refuse to sign a Bill into law and, instead, to refer it back to Parliament to ask it to “fix” the Bill for either policy reasons or because the President believes the Bill is flawed.

The South African President has a much narrower power to slow down the passage of Bill into an Act of Parliament, but only in very narrow circumstances. This weak veto power can be found in section 79 of the Constitution. Section 79(1) of the Constitution states that:

The President must either assent to and sign a Bill passed in terms of this Chapter or, if the President has reservations about the constitutionality of the Bill, refer it back to the National Assembly for reconsideration.

Section 79(4)(b) further allows the President to refer a Bill already reconsidered by Parliament in terms of section 79(1) to the Constitutional Court for a decision on its constitutionality.

These sections make clear that the President is required to sign a Bill duly passed by Parliament unless he or she has reservations about the constitutionality of aspects of the Bill. If the President has no reservations about the constitutionality of a Bill, he or she has a duty in terms of section 237 to fulfil the constitutional obligation to sign the Bill “diligently and without delay”.

When the President delays signing a Bill and refers it back to Parliament because he believes the Bill is flawed (but constitutionally compliant), the President unconstitutionally usurps the powers of Parliament – the only directly elected branch of government. Such a move would amount to a power grab by the executive vis-à-vis the legislature, and could lead to a constitutional crisis.

To understand how problematic such an unconstitutional power-grab could be, imagine the following stand-off between the President and Parliament. Parliament passes a Bill to privatise South African Airways. The President believes it would be wrong to privatise the airline and refuses to sign the Bill, referring it back to parliament instead to fix it. Parliament is outraged by the power-grab of the President and by what it deems to be a “serious violation of the Constitution”, which leads to impeachment proceedings and ultimate removal of the President.

But would it be possible for the President to circumvent the letter and spirit of section 79 of the Constitution by identifying a constitutional reservation in the Bill and then referring the entire Bill back to Parliament to fix the policy issues and “flaws” identified by the President? The answer is no.

In terms of Parliamentary Joint Rule 203 the President must identify the specific reservations he or she has about the constitutionality of aspects of the Bill. The President cannot refer the Bill in its entirety back to Parliament if the entire Bill is not unconstitutional. After a referral by the President, the relevant committee of Parliament must then “consider, and confine itself to, the President’s reservations”. The committee is not permitted to reconsider other parts of the Bill whose constitutionality has not been questioned by the President when he or she sent the Bill back to Parliament.

In Ex Parte President of the Republic of South Africa: In re Constitutionality of the Liquor Bill the Constitutional Court confirmed this when it stated that section 79(1) “envisages that the President’s ‘reservations’ must be specified when he refers a Bill back to Parliament” and this entails “that the President must itemise his reservations in relation to a Bill”. The Court went on to explain that:

It is moreover clear that the President is empowered to refer a matter to this Court in terms of section 79 only if his reservations concerning the constitutionality of the Bill are not fully accommodated by Parliament.  If the President has no reservations concerning the constitutionality of the Bill, or if his reservations have been fully accommodated by Parliament, the referral would be incompetent.

When the President refers a Bill to the Constitutional Court with his reservations about possible unconstitutionality of parts of the Bill, the Court is empowered only to consider the President’s reservations and is not empowered to test the constitutionality of the entire Bill.

In his letter to the President, Mr Macpherson identified five issues with the Bill which he said needed to be rectified by Parliament. He did not claim that any of these issues raised a constitutional question. He seemed to be unaware that he was asking the President to do something unconstitutional – to interfere in the democratic legislative process in a manner not permitted by the Constitution. While this must be embarrassing for Mr Macpherson, one assumes that the President’s lawyers will be more informed than Mr MacPherson and will advise him not to do what he was asked to do. Serious harm will be therefore be averted as long as Mr Macpherson’s request is ignored.

But this does raise the question of what can be done if Parliament passes legislation which it immediately discovers contains serious flaws (but remains constitutionally compliant). In such a case, the President has no option but to sign the Bill into law. Parliament then has one of two options. First it can repeal the newly enacted legislation. Second, Parliament can pass amendments to the newly enacted legislation to correct the flaws in the legislation.

What Parliament is not permitted to do – either on request or in accordance with instructions received from the President, or on own initiative – is to reconsider the Bill it had already passed for reasons unrelated to its possible unconstitutionality.

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