Revitalizing the liberty of the ancients through citizen participation in the legislative process

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Yale Law School Yale Law School Legal Scholarship Repository Student Scholarship Papers Yale Law School Student Scholarship Revitalizing the liberty of the ancients through citizen participation in the legislative process Athanasios E. Psygkas Yale Law School, Follow this and additional works at: Part of the Administrative Law Commons, Comparative and Foreign Law Commons, and the Legislation Commons Recommended Citation Psygkas, Athanasios E., Revitalizing the liberty of the ancients through citizen participation in the legislative process (2010). Student Scholarship Papers. Paper This Article is brought to you for free and open access by the Yale Law School Student Scholarship at Yale Law School Legal Scholarship Repository. It has been accepted for inclusion in Student Scholarship Papers by an authorized administrator of Yale Law School Legal Scholarship Repository. For more information, please contact Revitalizing the liberty of the ancients through citizen participation in the legislative process Thoughts on Doctors for Life International v. the Speaker of the National Assembly & Others [Constitutional Court of South Africa ] ATHANASIOS EFSTRATIOS PSYGKAS Summary I. Introduction. II. Doctors for Life: An Overview. A. Background of the case and the constitutional complaint. B. The holding of the Court. C. The rationale of the Court. III. A fourth-generation right to participation: Participation in policymaking within the legislature. A. The first three generations of participation rights. B. The fourth generation of participation rights: Participation in legislative policymaking and the liberty of the ancients. IV. Judicial enforcement of the fourth-generation participation right. A. The novelty of Doctors for Life: A judicially enforceable constitutional mandate for legislative participatory processes. Mr. Athanasios Efstratios Psygkas is JSD candidate, Yale Law School and Fox International Fellow, Institut d Études Politiques de Paris (Sciences Po); LL.M. (Yale), LL.M., LL.B. (Aristotle University of Thessaloniki). I am very grateful to Professor Susan Rose-Ackerman for her insights and conversations on the topics addressed in this essay, and to James Fowkes for very helpful comments on earlier drafts. 720 ATHANASIOS EFSTRATIOS PSYGKAS B. Limits on and self-restraint from the judiciary in enforcing legislative participatory processes. V. Conclusion: Lessons from Doctors for Life. Case of Doctors for Life. I. Introduction. I N A FAMOUS 1819 lecture entitled De la liberté des anciens comparée à celle des modernes 1 Benjamin Constant distinguished between two kinds of liberty: the liberty of the moderns and the liberty of the ancients. He identified the former with individual autonomy comprising an array of individual rights, such as the right to property, freedom of expression, right to choose one s profession, religious freedom, etc. The liberty of the ancients, on the other hand, consisted, according to Constant, in exercising collectively, but directly, several parts of the complete sovereignty; in deliberating, in the public square, over war and peace; in forming alliances with foreign governments; in voting laws, in pronouncing judgments 2. This liberty made the individual an integral member of the political community, but as Constant noted, if this was what the ancients called liberty, they admitted as compatible with this collective freedom the complete subjection of the individual to the authority of the community. No importance was given to individual independence 3. A number of constitutional developments occurred in the years succeeding that lecture at the Athénée royal de Paris. New generations of rights were added to the traditional list of political and individual liberties including, most notably, socio-economic rights 4. The South African Constitution adopted in was perceived as an archetypical third-generation Constitution. Commentators described that Constitution as a societal transformative document that seeks the transformation of the society through the construction of a multi-cultural social democracy in South Africa 6. The Constitutional Court itself underscored early on 1. CONSTANT: Political Writings 309, Biancamaria Fontana ed., Id. at Id. 4. See CASS R. SUNSTEIN, Designing Democracy: What Constitutions Do, 221, An interim Constitution had been ratified in DENNIS M. DAVIS, Transformation and the Democratic Case for Judicial Review: The Revitalizing the liberty of the ancients through citizen participation in the legislative process 721 that this foundational document marked a decisive break from the disgraceful aspects of the past and aspired to commit the nation to a brighter future 7. While these developments more clearly suggest an enrichment of the liberty of the moderns, this Comment seeks to read the case of Doctors for Life International v. the Speaker of the National Assembly & Others ( Doctors for Life ) as rediscovering and reinvigorating the liberty of the ancients. While Constant pointed out the inadequacy of the liberty of the ancients due to the danger of individuals being fully subjected to the unbridled collective authority, today s safeguards of individual autonomy rein in or, at least, aspire to keep in check potential excesses of collective power. The additional challenge with which we are faced today is that, in focusing on the liberty of the moderns, we do not lose sight of the liberty of the ancients in the sense of active and constant participation in collective power. In his book Active Liberty, U.S. Supreme Court Justice Stephen Breyer while conscious of the importance of modern liberty called increased attention to the combination s other half 8. Doctors for Life I will argue similarly invites us to reconsider the content of the liberty of the ancients by recognizing the importance of and enforcing a regime of citizen participation in the legislative process. This essay proceeds as follows: Part II provides some background to the case and highlights certain key arguments. Since the judgment is 198 pages long, an excerpt immediately follows at the end of this Comment. Part III sets forth the South African Experience, 5 Loy. U. Chi. Int'l L. Rev. 45 (2007). 7. See, e.g., S v. T Makwanyane & M Mchunu, 1995 (3) SA 391 (S. Afr.) at para. 262 (Mahomed J, concurring) (noting that the South African Constitution retains from the past only what is defensible and represents a decisive break from, and a ringing rejection of, that part of the past which is disgracefully racist, authoritarian, insular, and repressive and a vigorous identification of and commitment to a democratic, universalistic, caring and aspirationally egalitarian ethos, expressly articulated in the Constitution. What the Constitution expressly aspires to do is to provide a transition from these grossly unacceptable features of the past to a conspicuously contrasting future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex. ) (emphasis added). 8. See STEPHEN BREYER, Active Liberty: Interpreting our Democratic Constitution, 3-5, See, also, PIERRE ROSANVALLON, Book Review: Active Liberty: Interpreting Our Democratic Constitution, 5 Int'l J. Const. L., 564, 567 (2007) (noting that modern freedom is of a twofold nature. It is, at once, a vindication of individual autonomy and an acceptance of the freedom to participate in collective sovereignty. By recognizing this essential duality, Breyer reveals, perhaps, the greatest argument in favor of giving greater breadth to the active dimension of liberty in the modern era, thus balancing freedom's dual aspects ). 722 ATHANASIOS EFSTRATIOS PSYGKAS idea of a fourth-generation right, the right to citizen participation in the legislative process, as a prong of the revitalized liberty of the ancients. Part IV focuses on a crucial novelty of Doctors for Life, namely the judicial enforceability of the participatory provisions. Part V presents some concluding observations. II. Doctors for Life: An Overview. A. Background of the case and the constitutional complaint. According to section 42(1) of the South African Constitution, the legislative authority is vested in Parliament, which consists of two Houses: the National Assembly and the National Council of Provinces ( NCOP ). These democratic institutions represent different interests in the lawmaking process. The National Assembly represents the people to ensure government by the people (section 42(3)). The NCOP represents the provinces to ensure that provincial interests are taken into account in the national sphere of government. It does this mainly by participation in the national legislative process and by providing a national forum for public consideration of issues affecting the provinces. The NCOP performs functions similar to the National Assembly but from the distinct vantage point of the provinces 9. Both bodies must therefore act together in making law to ensure that the interests they represent are taken into consideration. The procedure for bills that affect the provinces gives more weight to the position of the NCOP than does the constitutional procedure for bills that do not affect the provinces. After a bill has been passed by the National Assembly it is referred to the NCOP, which can pass the bill, pass it subject to amendment or reject it. If the NCOP and the National Assembly cannot agree on a bill, it is sent to a mediation committee. If the two chambers cannot reach an agreement following mediation, the original bill lapses but may still become law if it is passed again but now by two-thirds of the members of the National Assembly. In this way, although the NCOP does not wield a final veto, it can delay their passage and force a two-thirds majority in the National Assembly. The applicant in this case, Doctors for Life International ( DFL ), challenged the constitutionality of four pieces of health legislation ( health bills ). These bills were: the Sterilisation Amendment Bill; the Traditional Health Practitioners Bill; the Choice on Termination of Pregnancy Amendment Bill ( CTOP Amendment Act ); and the Dental Technicians Amendment Bill. The CTOP 9. As the Court explains, the NCOP shares many of its structural characteristics with the German Bundesrat, upon which it was modeled (Doctors for Life, at para. 80). Revitalizing the liberty of the ancients through citizen participation in the legislative process 723 Amendment Act made provision for registered nurses, other than midwives, to perform termination of pregnancies at certain public and private facilities, and raised questions of the most intense concern for the petitioners. The applicant s complaint alleged that the NCOP, in passing these bills, failed to invite written submissions and conduct public hearings as required by its duty to facilitate public involvement in its legislative processes and those of its committees. Hence, the NCOP and the provincial legislatures did not comply with their constitutional obligations to facilitate public involvement in their legislative processes as required by the provisions of sections 72(1)(a) and 118(1)(a) of the Constitution, respectively. In terms of section 72(1)(a), the NCOP must facilitate public involvement in [its] legislative and other processes and [those of] its committees. Section 118(1)(a) contains a similar provision relating to provincial legislatures. B. The holding of the Court. The Court had to consider four questions: first, whether the Constitutional Court is the only court which can hear a matter of this nature; second, whether it is competent for the Court to grant declaratory relief in respect of the proceedings of Parliament; third, the nature and scope of the constitutional obligation of a legislative organ of the state to facilitate public involvement in the lawmaking process; and fourth, whether on the facts of the case the NCOP complied with that obligation when passing the health legislation under challenge, and, if it did not, the consequences of its failure. The Constitutional Court held that, under Section 167(4)(e) of the Constitution 10, it is the only court capable of hearing a challenge of this nature because the challenge involved a decision on whether Parliament had failed to fulfill a constitutional obligation. As to the second question, the Court concluded that the challenge to the Sterilisation Amendment Bill must be dismissed while it was under consideration by the President, but that it had the jurisdiction to consider the constitutional challenge to the other three health bills. With respect to the last two questions, the majority of the Court found that Parliament had failed to comply with its constitutional obligation to facilitate public involvement before passing the CTOP Amendment Act and the Traditional Health Practitioners Act as required by section 72(1)(a) of the Constitution, and declared the two Acts invalid. This court order was suspended for a period of 18 months to enable Parliament to re-enact the statutes in a manner consistent with the Constitution. This was an Which provides that [o]nly the Constitutional Court may e. decide that Parliament or the President has failed to fulfil a constitutional obligation. 724 ATHANASIOS EFSTRATIOS PSYGKAS decision: Justice Ngcobo wrote the majority opinion which was concurred in by Langa CJ, Moseneke DCJ, Madala J, Mokgoro J, Nkabinde J and O Regan. J. Sachs J. wrote a separate concurring opinion supporting the judgment by Ngcobo J and adding observations on the special meaning that participatory democracy has come to assume in South Africa. Yacoob J wrote the dissenting opinion which was concurred in by Skweyiya J, and van der Westhuizen J wrote a judgment explaining why he agreed with the dissent of Yacoob J. C. The rationale of the Court. It was argued in the literature that the seminal value of this case lies in the three bases of the court s approach to the role of legislatures in promoting participatory processes: international human rights law, a unique and specific mandatory constitutional duty, and a contextual and historical approach to public participation 11. The Court examines the right to political participation as a fundamental human right in international and foreign law. In this context, it makes reference to the International Covenant on Civil and Political Rights ( ICCPR ), the African [Banjul] Charter on Human and Peoples Rights ( African Charter ), the American Convention on Human Rights, the Harare Commonwealth Declaration, and the Inter-American Democratic Charter. The majority opinion finds that in most of these international and regional human rights instruments, the right consists of at least two elements: a general right to take part in the conduct of public affairs and a more specific right to vote and/or to be elected. Similarly, Justice Ngcobo writes, a growing number of national Constitutions, in particular those adopted since the entry into force of the ICCPR, expressly embrace the principle of participatory democracy. The examples he mentions are those of Tanzania, Portugal, Colombia and Belarus. However, as we already saw, the Court is faced with the duty to interpret a specific constitutional provision, Section 72(1)(a), mandating that the NCOP facilitate public involvement in the legislative process. To understand this mandate, the majority opinion offers some context on the history of public participation and the nature of the South African constitutional democracy. It explains that the idea of allowing the public to participate in the conduct of public affairs is not a new concept, as reflected in the traditional ideas of imbizo/lekgotla/bosberaad. This 11. KAREN SYMA CZAPANSKIY / RASHIDA MANJOO, The Right of Public Participation in the Law-Making Process and the Role of [the] Legislature in the Promotion of This Right, 19 Duke J.Comp. & Int'l L., 1, 3 (2008). Revitalizing the liberty of the ancients through citizen participation in the legislative process 725 kind of participatory consultation process was, and still is, used within South African communities as a forum to discuss issues affecting the community and is both a practical and symbolic part of the democratic processes. It is a form of participatory democracy. The understanding of the nature of the country s constitutional democracy, notes the majority, should also be grounded in the historical context of apartheid, a system that excluded the majority of the people from the lawmaking process. Justice Ngcobo then goes on to suggest that in the overall scheme of the Constitution, the representative and participatory elements of the South African democracy should not be seen as being in tension with each other. Rather, the constitutional framework requires the achievement of a balanced relationship between these elements. Section 72(1)(a), like section 59(1)(a) and section 118(1)(a), addresses the vital relationship between representative and participatory elements, which lies at the heart of the legislative function. It imposes a special duty on the legislature and pre-supposes that the legislature will have considerable discretion in determining how best to achieve this balanced relationship. The ultimate question for the Court then is whether there has been the degree of public involvement that is required by the Constitution. The test is whether the legislature acted reasonably in carrying out its duty to facilitate public involvement in its processes. The following factors could be taken into account as especially relevant in determining reasonableness: (i) the nature of the legislation concerned; (ii) the importance of the legislation; (iii) the intensity of its impact on the public. Other relevant factors include practicalities such as time and expense, which relate to the efficiency of the law-making process. What is ultimately important to the Court is that the legislature has taken steps to afford the public a reasonable opportunity to participate effectively in the lawmaking process. And its conclusion is that the legislature did not afford citizens such an opportunity in passing two of the health bills. III. A fourth-generation right to participation: Participation in policymaking within the legislature. Schematically, we could roughly distinguish three types of participation rights that citizens can exercise vis-à-vis the administration or public authorities more generally. This idea builds on Francesca Bignami s outline of three generations of participation rights in the European Union 12. Section A presents these 12. See FRANCESCA BIGNAMI, Three Generations of Participation Rights Before the European Commission, 68 Law & Contemp. Probs. 61 (2004). 726 ATHANASIOS EFSTRATIOS PSYGKAS first three generations and suggests that there has been increasing interest recently and rightly so in the third generation of participatory rights: the right to participate in administrative policymaking. However, Doctors for Life might indicate the emergence of a fourth generation of participation rights. This new generation of rights pertains to parliamentary lawmaking and more interestingly or surprisingly goes back to and revitalizes the liberty of the ancients (Section B). A. The first three generations of participation rights. 1. The first generation: Right of defense. The first generation of participation rights essentially consists in a right of defense : that is, an individual or a firm has the right to be heard before adverse administrative action is taken against it. The idea here is that citizens participate in the formation of acts that adversely, but individually, affect them. The value served is fairness since this process is a safeguard against arbitrariness: when the administration is planning on taking action of direct and individual concern to a citizen (e.g
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