Legislatures in Lockdown

Introduction

The National Assembly is currently deliberating on a series of proposed amendments to the Disaster Management Act (the “DMA”).[1] As the law stands, the DMA permits the executive branch of government to take over the role of our deliberative legislative bodies in issuing and implementing the rules that manage states of disaster.^[2] This delegation of law-making power comes with no time limit, no express mechanism for our legislatures to wrest back control of the law-making process and no formal obligation placed on legislative bodies to monitor the work it has outsourced in this manner. The amendments that are now proposed, suggest two significant changes to this status quo.

• Firstly, while they leave the power to initiate a state of disaster in the hands of an executive authority, the amendments require that any extension thereof be subject to a resolution passed by a national, provincial or local legislative authority – after a mandatory debate. Unless approved in this manner, the state of disaster would lapse.
• Secondly, they require regulations made under the DMA to be tabled before the relevant legislative authority, as soon as possible after their publication. Such legislative authority then has an opportunity to reject them, make recommendations for their improvement or let them be.

In essence, therefore, the amendments seek a modest, but constitutionally significant, elevation of our deliberative legislative bodies in managing states of disaster. In this way, the amendments hold the potential to produce a DMA that is more in line with our constitutional system, in order to better manage both current and future disasters. Perhaps in the haze of that unprecedented moment in March last year, our legislatures let go of more power than they should have. Now, however, with 18 months of lockdown experience, we have the opportunity to turn cooler heads to figuring out how we manage a constitutional democracy like ours during states of disaster. This is all the more important given that the amendments have been proposed by way of a Private Member’s Bill and will, no doubt, begin on a political backfoot.

Deliberative Legislative Bodies In Our Constitutional Democracy

In the flurry of litigation that took place in the wake of our first set of promulgated regulations on 18 March 2020, in which the Helen Suzman Foundation took part twice, the constitutionality of the DMA’s wholesale delegation of law-making power to the executive in times of disaster was ultimately tested and signed-off by two important High Court decisions.[3] However, taking the founding values of our Constitution into account, there may well be a residual concern that the DMA, in its current form, still falls short of democratic government.

Section 1(d) of the Constitution foreshadows the proper role of our deliberative legislative bodies in our constitutional system, when it states that our democratic state is founded, in part, on:

“Universal adult suffrage, a national common voters roll, regular elections and a multipartysystem of democratic government, to ensure accountability, responsiveness and openness.”

Animated by this founding provision, legislative bodies provide South Africans with two important ways for their voices to be heard when laws are made. The first is via their elected representatives, who speak on their behalf. The second flows from the goal of achieving government that is ‘accountable, responsive and open’. Writing for the majority of the Constitutional Court in Doctors for Life, Ngcobo J observed that this aspect of our founding provision requires an element of direct participation in law-making.[4] In other words, section 1(d) of the Constitution provides that South Africans should not only receive the benefit of their representatives making a case in their stead when laws are made – but also an opportunity to speak for themselves.

The wisdom of staying true to this method of law-making goes beyond sticking to the letter and spirt of the Constitution for the sake of mere principle. There is practical wisdom in making laws this way. When laws are made in a manner that recognises the voice of the people, those laws are more likely to be viewed as legitimate – even by those who disagree with the outcome. More than this, however, collective deliberation in a diverse legislative body holds the potential to produce better government. When diverse views come together, in an environment of co-operative decision making, good ideas have a better chance of making an imprint on the laws that legislative bodies produce.

The trouble with the current state of the DMA is that regulations are made by the executive branch. Our public representatives do not debate, or seek public involvement, regarding the extension of a state of disaster or on the merits of regulations that are issued in its name. This is in sharp contrast to the ordinary law-making process.

The High Court decisions that supported the constitutionality of this arrangement endorsed a rather thin notion of parliamentary oversight.[5] They found that despite the DMA’s wide-ranging delegation of law-making power, the Constitution provides a sound framework for legislative supervision of executive action that covers the drafting of regulations under the DMA.[6] And that within this framework, our system of portfolio committees in the National Assembly, and select committees in the NCOP, in proper discussion with the executive, properly asserts the constitutional role of our deliberative legislative bodies in the management of states of disaster.[7] However, this approach fails to do justice to our constitutional scheme for two reasons.

• The first originates in the text of section 42(3) of the Constitution, which states:
  
  

  “The National Assembly is elected to represent the people and to ensure government by the people under the Constitution. It does this by choosing the President, by providing a national forum for public consideration of issues, by passing legislation and by scrutinizing and overseeing executive action.”

  
  Discussions between portfolio or select committees and functionaries in the executive – valuable as they may be in some contexts – simply do not rise to the level of providing a national forum for public consideration of issues. The promise of representative and participatory democracy dims significantly when legislative oversight over executive action is exercised by committees as opposed to a legislature in plenary session, where all its members are present in debate. To assume that sporadic briefings by Ministers to portfolio committees constitute effective parliamentary oversight, seriously overestimates the oversight powers of such committees. This is especially so when the executive action in question is a rule-making power that approximates the power to produce original legislation.

• The second is that parliament has not taken the opportunity of actually applying sections 42(3), 55(2)(b)(i) and 92(2) of the Constitution to craft a system of legislative oversight that makes a real difference in the way in which the executive does its business. As a consequence, parliamentary committees do not enjoy any real power to influence executive action – even when executive decisions may be unpopular among members of parliament more broadly. Once again, this is no way to realise the promise of representative and participatory democracy, when law-making power is delegated on the scale that the DMA currently allows.

The Role Of Our Courts

Apart from relying on weak mechanisms of legislative oversight, the High Court in Democratic Alliance v Minister of Co-operative Governance and Traditional Affairs and Others, effectively made it the business of the courts – not our legislatures – to monitor the executive’s ability to stay within the boundaries of the DMA. In the course of endorsing the DMA’s constitutionality, the High Court pointed out the array of protections that the DMA has ‘built-in’ to protect against excesses in the executive’s delegated law-making power.[8] The question, however, is whether these protections are sufficient, without any meaningful legislative oversight.

Relying on our courts to police the boundaries of a statute may be reasonable where it allows the executive to govern niche aspects of our society by way of delegated legislation, but it is altogether different when the regulations take on the scale of those we have seen under the DMA. When regulations are made that have the effect of governing the country as a whole, parliament should have a meaningful voice in patrolling the boundaries of the law-making power that it delegates. Courts can at best provide an uneven oversight mechanism in comparison, and one that is ultimately dependent on the energy and financial resources of willing litigants.

Why The Amendments Are A Good Idea

Expressing concern that regulations under the DMA are not effectively overseen by representative legislatures should not be taken to imply that such legislative bodies should be the source of all binding rules that regulate a complex society like ours. Chaskalson CJ, pointed out on behalf of the majority of the Constitutional Court in Executive Council Western Cape that legislative bodies must have the power to delegate their law-making power to more nimble functionaries in the executive branch, in order to properly manage the complexities of a modern state.[9] Therefore, delegating legislative power is perfectly compatible with our constitutional scheme and it is bound to be a part of any legislative solution to a complex disaster such as the Covid-19 pandemic.[10]

Given this reality, it is important to recognise how modest an assertion of legislative supervision the amendments propose. They recognise that any legislative response to a state of disaster will allow an executive authority to initiate a state of disaster and to issue regulations before any consideration by parliament. However, the proposed amendments merely ensure that the role of the executive is properly supervised – but not to constrain it when urgent action is necessary.

This makes sense both in logic and in law.

In the context of managing the Covid-19 pandemic, for example, the amendments would require the National Assembly to hold debates among our public representatives regarding the value of continuing to allow the Minister’s regulations to play their current role in managing the country. The amendments, in their current form, require a 60% majority to extend a state of disaster more than once. While this is not inherently offensive to allowing the executive a robust role in the management of states of disaster, one could easily retain the spirit of the amendments and reduce that majority to 50% so that the Minister’s rule is subject to the approval of a simple legislative majority. Parliament could also do its part by designing procedures that streamline the process of debating and approving an extension, in order to ensure that the legitimate role of the executive in times of disaster is not unduly hampered.

Moreover, the amendments place no undue burden on the executive in its issuing of regulations under the DMA. The amendments do not make any regulation dependent on legislative approval, but simply provide a mechanism by which legislative bodies can effectively oversee the work that they have asked the executive to do on their behalf. The most trouble that the amendments could make for the executive in this regard, is to enable a simple legislative majority to cause regulations to be altered or redrafted. This is precisely the sort of inconvenience that the executive should be prepared to tolerate, however, in a democratic system like ours. This would also give our legislatures their own role in regularly policing the boundaries of the DMA on a scale that the judiciary is unable to do – or should not be required to do.

The Limits Of Parliamentary Supervision

The foregoing should not be taken as expressing implicit faith in the ability of our deliberative legislative bodies to produce the best of all possible outcomes, if given the chance to properly supervise a state of disaster. We need to recognise that our National Assembly sat out their oversight role during the years of state capture and most recently, it was effectively bypassed by the Independent Electoral Commission when it decided to approach the Constitutional Court in its attempt to postpone the local elections. Without a serious change by members of Parliament to the way in which they perceive their role in a constitutional democracy, this status quo is likely to continue. However, pessimism about our current public representatives is no reason to avoid elevating legislatures as constitutional institutions to their proper place, when managing states of disaster.

Nor is the availability of other, imperfect, modes of fostering public involvement in the regulation-making process. In the recent case of Esau, Plaskett J found that regulation-making under the DMA attracted the demands of just administrative action in terms of the Promotion of Administrative Justice Act (the “PAJA”).[11] At the very least, this should allow the public a degree of involvement in the regulation-making process via section 4 of the PAJA, which creates a duty on the part of the state to seek public input whenever it acts in its administrative function to materially affect the rights of the public at large. In the absence of robust legislative oversight, these mechanisms will have to carry the burden of facilitating public involvement in the production of regulations under the DMA going forward.

The trouble, however, is that PAJA’s mechanisms for fostering public involvement fall far short of the sort that would follow proper legislative oversight and, therefore, should not be viewed as reason to avoid considering the amendments. To require public input prior to the publication of regulations that may be required very urgently, will also not contribute to an effective executive process, when the country is faced with a national disaster.

Conclusion

For 18 months now, South Africans have lived under regulations drafted outside of the processes that govern ordinary law-making. These processes are vital features of our constitutional framework. Currently, South Africa is being governed, to a significant degree, at a worrying distance from these processes. With the benefit of the amendments, however, our deliberative legislative bodies will edge closer to fulfilling their constitutional role in times of disaster. So modest are the proposals of the amendments for legislative supervision, that to reject them would reflect a worrying appetite for government via the executive. Or, a desire to ignore sensible reform because of party-political considerations.

Christopher Fisher
Senior Legal Researcher
christopher@hsf.org.za

[1]The amendments can be found here: Disaster Management Amendment Bill | PMG