Constitutional manoeuvres of separatist forces:

Move to remove the concurrent list and expand the provincial list

Manohara R. De Silva

On a comparison of the provincial legislative powers enumerated in the South African Constitution with ours, it will be seen that in the South African Constitution exclusive powers to the provinces have been given very sparingly.

Almost all the important powers are within the national sphere of government. As described above, even the few powers that have been given exclusively to the provinces can be exercised by the national legislature to maintain national security, economic unity, essential national standards etc.

Extension of the Provincial Councils (consequential provisions) Act No. 12 of 1989 as an interim measure

The LSSP recently demanded that the Provincial Councils (consequential provisions) Act No. 12 of 1989 should be extended to the concurrent list pending the proposals of the APRC.

This Act provides for provincial ministers and provincial council public officers to exercise power under laws enacted by Parliament in respect of a subject in the Provincial List.

Where any power or function is assigned to a Minister or to a public officer in any written law made prior to November 14, 1987 on any matter set out in the provincial list in the 13th amendment, such power or function can be exercised and discharged by a provincial minister or provincial public officer with regard to their province.

If this law is extended to the concurrent list a provincial minister or a provincial public officer could simultaneously exercise powers enumerated in the concurrent list.

The effect of such an amendment would be that the Central Minister or official would not be in a position to override a decision of a provincial minister or a provincial public officer with regard to a subject in the concurrent list.

The disastrous consequences of such a move could be explained by reference to an incident that occurred in 1996 which attracted much controversy.

A powerful Muslim politician was instrumental in demolishing an ancient monument close to the Deegawapi Maha Vihara, much to the annoyance of the Buddhist public. Further destruction to these ancient monuments were stalled by the intervention of the relevant Minister of the Central Government.

The Central Government Minister of Land over the phone directed to stop the bulldozing of the ancient monuments.

If such an incident is to happen after the full implantation of the 13th amendment it would be doubtful whether the Central Government Minister would have the same power to intervene in such a matter effectively.

If the perpetrator of the crime is the provincial government itself, then by the extension of the aforementioned Act to the concurrent list both the provincial minister and the Central Government Minister will have equal powers and one would not be able to override the other.

One argument that has been put forward to do away with the concurrent list is the opportunity for the Central Government to resort to the power of formulating National Policy with regard to any subject.

Even the South African Constitution clearly sets out the power of the National Legislature to deal with national policy - vide Article 146 (2) of the South African Constitution which is reproduced below.

146. Conflicts between national and provincial legislation

2. National legislation that applies uniformly with regard to the country as a whole prevails over provincial legislation if any of the following conditions is met:

a. The national legislation deals with a matter that cannot be regulated effectively by legislation enacted by the respective provinces individually.

b. The national legislation deals with a matter that, to be dealt with effectively, requires uniformity across the nation, and the national legislation provides that uniformity by establishing

i. norms and standards;

ii. frameworks; or

iii. national policies.

c. The national legislation is necessary for

i. the maintenance of national security;

ii. the maintenance of economic unity;

iii. the protection of the common market in respect of the mobility of goods, services, capital and labour;

iv. the promotion of economic activities across provincial boundaries;

v. the promotion of equal opportunity or equal access to government services; or

vi. the protection of the environment.

To be continued