Laws with­out con­sul­ta­tion will not hold firm

Business Day - Business Law and Tax Review - - BUSINESS LAW & TAX REVIEW - Patrick Bracher

Pub­lic in­volve­ment is of­ten over­looked in the last-minute changes to leg­is­la­tion

YOU don’t have to get be­yond sec­tion 1 of our con­sti­tu­tion to learn that SA is founded on a sys­tem of demo­cratic govern­ment that en­sures ac­count­abil­ity, re­spon­sive­ness and open­ness. Only the most op­ti­mistic among us would ex­pect any govern­ment to take that lit­er­ally. But at least we ex­pect them to stick to the rules.

An un­happy prac­tice has de­vel­oped in par­lia­ment to give just the slight­est nod to the re­quire­ment of trans­parency. Where there is great pub­lic in­ter­est in a bill go­ing through par­lia­ment, the port­fo­lio com­mit­tee must in­vite pub­lic com­ment and al­low oral rep­re­sen­ta­tions to be made at pub­lic hear­ings.

But a new prac­tice has crept in, ex­ag­ger­ated by an ur­gent need at the mo­ment to please po­ten­tial vot­ers.

Ma­jor changes to pend­ing leg­is­la­tion are in­tro­duced by the port­fo­lio com­mit­tee af­ter the pub­lic hear­ings that in­clude pro­vi­sions far be­yond what orig­i­nally went through par­lia­ment and far be­yond the pro­posed law that the pub­lic was asked to com­ment on.

Re­cent last-minute changes were made to the Na­tional Credit Amend­ment Bill that make ma­jor in­roads into the rights of credit providers. But only a few selected stake­hold­ers were in­vited to com­ment and even they were given only one busi­ness day to do so.

Last month Busi­ness Day re­ported that the Off­shore Petroleum As­so­ci­a­tion com­plained that sig­nif­i­cant changes to min­eral laws had been made a few days be­fore pass­ing the law with­out af­ford­ing them a proper op­por­tu­nity to com­ment. Those po­ten­tially af­fected by the laws know best what the ad­verse im­pacts may be. The pur­pose of con­sul­ta­tion is to help the govern­ment make more ap­pro­pri­ate de­ci­sions in re­gard to the laws they pass. If no ef­fec­tive op­por­tu­nity is given for pub­lic par­tic­i­pa­tion, the prin­ci­ple falls apart.

The great haste to get things passed be­fore the elec­tion ig­nores the re­quire­ment for par­lia­ment to fa­cil­i­tate pub­lic in­volve­ment in leg­is­la­ture.

In 2006 the elo­quent Judge Sachs in the Con­sti­tu­tional Court said that “all par­ties in­ter­ested in leg­is­la­tion should feel that they have been given a real op­por­tu­nity to have their say, that they are taken se­ri­ously as cit­i­zens and that their views mat­ter … leg­is­la­tors must have the ben­e­fit of all in­puts that will en­able them to pro­duce the best pos­si­ble laws”.

These words should be carved into the wood on the front benches in par­lia­ment.

Mean­ing­ful con­sul­ta­tion en­sures that leg­is­la­tion is not ar­bi­trary or one-sided and that those af­fected are not marginalised.

Laws passed with­out proper con­sul­ta­tion can be set aside by the Con­sti­tu­tional Court. But why should we have to use that long and ex­pen­sive process when par­lia­ment and their port­fo­lio com­mit­tees can sim­ply do what they are sup­posed to do in the best in­ter­ests of the pub­lic?

Patrick Bracher (@PBracher1) is a di­rec­tor at Nor­ton Rose Ful­bright.

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