The Constitutional Court has rebuked parliament repeatedly for failing to consult the public properly when it considers legislation. Time and time again the court has scrapped new laws because MPs did not do a decent job.
The latest example is the Traditional and Khoi-San Leadership Act, which the court threw out in May. It found that parliament breached its constitutional obligation to facilitate public participation when considering the legislation.
It is thus truly astonishing that parliament’s portfolio committee on basic education has concluded its deliberations on the Basic Education Laws Amendment (Bela) Bill without considering more than 9,500 emailed submissions received in response to its call for public comment.
Last week, opposition MP’s rightly protested at the lack of answers to their questions about how the committee’s staff scrutinised public input, and why they left such a significant tranche of the 17,452 emails untouched while diligently working through every single one of the 11,773 written submissions received by courier and all of the 4,733 forms submitted during provincial public hearings.
Bear in mind that this is not an unusually large workload for a parliamentary committee considering draft legislation. The portfolio committee on health, for example, received almost 339,000 written submissions on the National Health Insurance Bill. That raised problems of a different sort, leaving MPs wrestling with the question of whether they could outsource the work. But at no point did the committee’s staff say they were simply going to turn a blind eye to some of the material.
Curiously, an interim analysis of 3,504 written submissions on the Bela bill presented to the basic education committee last November concluded that the vast majority (3,138) were completely opposed to the bill, in sharp contrast to the final summary provided to MPs last week, which concluded the majority of written submissions supported the bill. That swing raises troubling questions about whether public comments were cherry-picked at the eleventh hour to support a predetermined outcome.
It is morally repugnant to ask the public to comment on proposed laws and then completely ignore some of them. It is also short-sighted as a dubious public participation process offers a soft target to opponents of the bill.
It is abundantly clear that the Bela bill is set to run into legal challenge. While the ANC-dominated committee bowed to stakeholders’ appeals to scrap the bill’s provisions allowing alcohol sales on school premises for fundraising, it has not budged on the far more politically charged issues of school admission and language policies. The bill provides that provincial heads of education departments approve language and admission policies in place in each school, usurping power enjoyed by school governing bodies.
It is not hard to see how opponents of the bill could mount a series of legal attacks, starting with a challenge to the public participation process which if successful would delay the bill’s implementation by years.
The bill contains some sensible measures — such as extending compulsory schooling by a year — that will give children a better start in life. It would be a great pity to see it delayed because of MPs’ foolishness.
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