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what do the courts say about meaningful participation IN LAW MAKING?

what do the courts say about meaningful participation IN LAW MAKING? . Sections 59(1)(a); 72(1)(a) & 118(1)(a) of the Constitution. States that the NA / NCOP /a Provincial Legislature MUST

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what do the courts say about meaningful participation IN LAW MAKING?

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  1. what do the courts say about meaningful participation IN LAW MAKING?

  2. Sections 59(1)(a); 72(1)(a) & 118(1)(a) of the Constitution • States that the NA / NCOP /a Provincial Legislature MUST • “facilitate public involvementin the legislative and other processes of the [Assembly/ Council / Legislature] and its committees”

  3. DOCTORS FOR LIFE • These sections place a legally-binding CONSTITUTIONAL OBLIGATION on parliament/provincial legislature • Public has a LEGALLY ENFORCEABLE RIGHTto participate in law making process • Con Court can rule on whether there was anAPPROPRIATE DEGREE OF PUBLICINVOLVEMENT & can declare a law invalid

  4. DUAL ASPECTS OF THE DUTY • Duty to provide MEANINGFUL OPPORTUNITIES for public participation in the law making process (notice & comment procedures, public hearings etc.) • Duty to TAKE MEASURES to ENSURE that PEOPLE have the ABILITY TO TAKE ADVANTAGE OF OPPORTUNITIES provided (provide information & build public’s capacity to participate - educate)

  5. EXTENT OF THE DUTY -REASONABLENESS ENQUIRY NATURE /CONTENT of legislation (controversial / intense public interest?) IMPORTANCEof legislation INTENSITY OF ITS IMPACT on public EFFICIENCYof process (time & expense) URGENCY

  6. EXTENT OF THE DUTY – REASONABLENESS ENQUIRY • WIDE DISCRETION - what parliament itself considers appropriate • RULESADOPTED BY PARLIAMENT to facilitate public involvement • NATURE OF GROUP MOST AFFECTED traditionally marginalised? • PUBLIC REQUESTS to participate & PROMISES made to provide platform for participation?

  7. Reasonableness - Matatiele(II) • “The more discrete and identifiable the potentially affected section of the population, and the more intense the possible effect on their interests, the more reasonable it would be to expect the legislature to be astute to ensure that the potentially affected section of the population was given a reasonable opportunity to have a say.”

  8. CREATING CONDITIONS - PUBLIC PARTICIPATION IN PARLIAMENT Examples cited: • road shows • regional workshops • radio programs • publications aimed at educating and informing the public about ways to influence Parliament

  9. Creating Conditions – Provincial Legislatures (Matatiele II) • Broad discretion - • Provide transport to and from hearings • host radio programs in multiple languages on important bills • “May well go beyond any formulaic requirement of notice or hearing.”

  10. TIMING OF PARTICIPATION • “Legislatures must facilitate participation AT A POINT IN THE LEGISLATIVE PROCESS WHERE INVOLVEMENT BY INTERESTED MEMBERS OF THE PUBLIC WOULD BE MEANINGFUL. It is not reasonable to offer participation at a time or place that is tangential to the moments when significant legislative decisions are in fact about to be made. Interested parties are entitled to a REASONABLE OPPORTUNITY TO PARTICIPATE IN A MANNER WHICH MAY INFLUENCE LEGISLATIVE DECISIONS.”

  11. MOUTSE - TIMING • Interested parties must be given ADEQUATE TIME TO PREPARE for a hearing/ study the bill • The time or stage when the hearing is permitted, must be before the final decision is taken. • It must be an OPPORTUNITY CAPABLE OF INFLUENCING THE DECISION.

  12. MATATIELE (II) – TIMING • Requires law-makers to consider representations made & thereafter MAKE AN INFORMED DECISION • Must listen to the concerns, values, and preferences of the public and to CONSIDER thesein shaping their decisions and policies.

  13. NO RIGHT TO A PARTICULAR DECISION - MERAFONG • Does not mean your view will prevail. • Government not bound by the views expressed • Public participation cannot overrule majority rule.

  14. MERAFONG • The legislature is required to KEEP AN OPEN MIND when engaging in participatory process • Meaningful consultation requires a free expression of views and a WILLINGNESS TO TAKE THOSE VIEWS INTO ACCOUNT

  15. POVERTY ALLEVIATION • “The fact that the process of engagement is not reflected in a change to the legislation, or in the accommodation of the representations submitted to Parliament, does not necessarily mean that reasonable participation did not take place or that the views of the public were not considered.” Prepared by: Lisa Draga 2012/08/12

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