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Friday, 6 February 2009

Flawed “constitutions” deny democracy.

I searched two of the newest national “constitutions” for references to key words that would show whether the people they affect are able to

amend them directly. The key words I looked for were “ referendum”, “amend”, and “constitution”.

The two “constitutions” I examined were:

1] The Constitution of the Republic of South Africa, 1996, which was approved by the Constitutional Court (CC) on 4 December 1996 and took effect on 4 February 1997.

2] The Fijian Constitution (Amendment) Bill 1997 was passed by the House of Representatives on 3 July that year and by the Senate on 10 July. President Mara signed it into law on 25 July. It took effect from 27 July 1997.

Already we can note that in neither case were referendums even considered for either the finished “constitutions” as a whole, still less for any earlier phases of their elaboration.


I found two references in the South African “constitution”:

Section 84 Powers and functions of President
(2) The President is responsible for-
(g) calling a national referendum in terms of an Act of Parliament;

Section 127 Powers and functions of Premiers
(2) The Premier of a province is responsible for-
(f) calling a referendum in the province in accordance with national legislation.

I found zero references to the word in the Fijian “constitution”.

*amend* and *constitution*

In the South African “constitution”:

There is no provision for referendums to alter the “constitution”. Amendments to the “constitution” may only be made via acts of parliament. When approved by parliament they then have to be vetted for their constitutionality by a “Constitutional” Court.

Section 44 National legislative authority
(1) The national legislative authority as vested in Parliament-
(a) confers on the National Assembly the power-
(i) to amend the Constitution;
(iii) to assign any of its legislative powers, except the power to amend the Constitution, to any legislative body in another sphere of government; and
(b) confers on the National Council of Provinces the power-
(i) to participate in amending the Constitution in accordance with section 74;
(4) When exercising its legislative authority, Parliament is bound only by the Constitution, and must act in accordance with, and within the limits of, the Constitution.

In the Fijian “constitution’:

Again there is no provision for referendums to alter the constitution. Amendments to the constitution may only be made via acts of parliament. These then go through a complex procedure that at no time considers any ratification by the people of Fiji.

Chapter 15 Amendment of Constitution
Section 190 Alteration of Constitution
This Constitution maybe altered in the way set out in this Chapter and may not be altered in any other way.
Section 191 Special parliamentary majorities
(1) A Bill for the alteration of this Constitution must be expressed as a Bill for an Act to alter this Constitution.
(2) Subject to subsection (3) and section 192 the Bill, with or without amendments passed by either House of the Parliament, must be passed by both Houses in accordance with the following procedure:
(a) the Bill is read 3 times in each House and motions for the second and third readings are carried in each House;
(b) at the second and third readings it is supported by the votes of at least two-thirds of the members of each House;
(c) in the House of Representatives an interval of at least 60 days elapses between the second and third readings and each of those readings is preceded by full opportunity for debate;
(d) the third reading of the Bill in the House of Representatives does not take place until after the relevant standing committee has reported on the Bill to that House.
(3) Subject to section 192 if
(a) the Prime Minister certifies that a particular Bill for the alteration of the Constitution is an urgent measure that ought to be dealt with by the House of Representatives under this subsection; and
(b) the giving of that certificate is supported by a resolution passed by a majority of at least 53 members of the House;
paragraphs (2)(b), (c) and (d) do not apply in relation to the consideration of the Bill by that House and the Bill is deemed to have been duly passed by that House if, on its third reading, it is passed by a majority of at least 53 members of that House.

Contrast the South African and Fijian examples with that of Switzerland:

18 April 1999: Federal Constitution adopted by Referendum with 59% to 41% and came into force on 1 January 2000.
18 Dec 1998: Parliament adopts draft of the new constitution.
18 May 1996: Publication of the draft of a revised Constitution.
29 May 1874: Complete revision of the Federal Constitution extending direct democracy on the federal level.
12 Sep 1848: Federal Constitution adopted by a constitutional convention and a majority of 15 of 22 cantons (in force: 16 Nov 1848). The constitution combines elements of the cantonal constitutions with the model of the US.

1 comment:

Anonymous said...

Having a Constitution is fine but it doesn't seem to make much difference in the USA. Australia as far as I know has to have a referendum to change their Constitution but what difference does it make if we don't have binding referendums in the first place?