Laws without consultation will not hold firm
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.