Item 904 - Statement from the Office of the President on the referrral of Bills to Parliament

TRANSCRIPT

If the President has reservations concerning the constitutionality of a Bill submitted to him for his assent, the President is required to refer it back to the National Assembly for its reconsideration. For the reasons set out the President is referring three Bills to the National Assembly for their reconsideration.

The Broadcasting Bill

While the Bill's purpose as a whole is not unconstitutional the President is concerned that the formulation of section 40(1)(a) confers an imprecise, potentially over-broad, power on the Minister to regulate even on matters which fall within the regulatory function of the Independent Broadcasting Authority. While this may be a matter of draftmanship, the President is advised that the current formulation unnecessarily exposes the Bill to constitutional attack and that the Minister's regulatory power should be defined and restricted so as not to expose him to the allegation that his power overlaps with that of the Authority.

Secondly, as the President is advised, it may well be that the Minister may need to formulate policy and give general directions in the public interest regarding some matters dealt with under the Act. However, if this power impinges upon the independent decision-making function of the IBA it will run the risk of falling foul of section 192 of the Constitution. As there may be some uncertainty regarding the exact import of 'policy directives' in this regard, an appropriate definition of this power may protect the Bill from constitutional review for want of compliance with section 192.

The President is satisfied that the Bill does not infringe the Bill of Fundamental Rights set out in the Constitution.

Tobacco Products Control Amendment Bill

In regard to the Tobacco Products Control Amendment Bill, the President would want to make it clear that he is satisfied that the purposes and objectives of the Bill fall within the parameters of constitutionality. In other words, it is not unconstitutional in principle to prohibit the advertising of smoking and to prohibit smoking in public places for the reasons set out in the preamble. Accordingly it is not necessary for the National Assembly to reconsider the purposes of the Bill.

Where legislation may impinge on fundamental rights, the terms thereof should not be over-broad. It should not limit rights in areas beyond or unconnected to the purposes of the Bill. In this regard the President is advised that section 3(2) of the Bill, in prohibiting the organisation, or promotion of, or financial assistance to an 'organised activity' by tobacco-related enterprises, fails to define 'organised activity'. The very wide ambit of this term would mean that activities unrelated to the purposes of the Act and protected by the Bill of Rights, especially freedom of association, would be proscribed. This defect, the President is advised, may be cured by a more precise definition of the 'organised activities' contemplated by the Bill.

The President would also draw attention to the possible and unintended consequence of extending the definition of 'public place' by section 2(k) to possibly include private places including a dwelling, apartment, flat or residence in which an employee performs his or her duties. If this is not the intention of the Bill, it may also be considered over-broad unless such private places are exempted. The President is advised that a ministerial power to extend the prohibition to categories of private residences the nature of which warrants their treatment as a public place would, however, be connected to the purposes of the Act.

Liquor Bill

In respect of the Liquor Bill, there is no specific provision as such which casts doubt on the Bill's constitutionality. Rather the framework to be introduced by the Bill deals with liquor licensing in the provinces which the Bill is entitled to do only if it is necessary for any of the purposes listed in section 44(2)(b) - (e) of the Constitution.

Although it appears that there are good reasons for believing that the Bill is warranted, it is not possible for the President to determine this question with any certainty. The answer to this question must be determined with reference, not merely to legal issues, but certain factual and policy questions. In this regard the constitutional jurisprudence offers no assistance as the courts have not, as yet, offered any guidance on how such a question is to be approached. It appears that in this, the first case of its kind, only the Constitutional Court can authoritatively pronounce on the Bill's constitutionality. However the Constitution does not allow the President to refer this Bill to the Constitutional Court unless it has been referred back to him after reconsideration by the National Assembly.

The Bill will serve as legal authority for the introduction of a nation-wide system of liquor licensing, as well as the issuing of such licences. Should the Act be subsequently declared unconstitutional, not only the validity of the framework, but the licences issued there under, would be subject to uncertainty and revocation - resulting in confusion in this sector.

It is with this in mind that the President refer the Bill back to the National Assembly.

Conclusion

The President would want to stress that Bills approved by Parliament are not lightly referred back to the National Assembly. Section 79 of the Constitution does however allow a special opportunity for any Bill so approved to be reconsidered for the purpose of placing it on its firmest constitutional foundation. It is of course up to Parliament itself to decide whether such concerns need be dealt with and how.

The President has been advised that the three relevant Ministers have indicated that they would welcome a further opportunity to resolve or remove any constitutional uncertainties, as they would want the Bills to be enacted into law only on a sound constitutional footing and best placed to withstand any constitutional challenge.