Order! I have now had an opportunity to consider the instruction of which the hon. member for Jeppe gave notice yesterday.

I have to inform this House that I cannot accept the notice of instruction as it seeks to empower the Committee of the Whole House to effect amendments which are in conflict with the principles of the Bill as read a Second Time.

The notice will accordingly be discharged from the Order Paper.

Mr. Speaker, when the House adjourned yesterday evening I had finished making some comments in which I said, inter alia, that the hon. member for Yeoville was very good at chitter-chatter. [Interjections.] I hope that he remembers that today because whilst it does not particularly put me off my stroke, it does make him sound a little bit like a grass monkey. [Interjections.] As I said earlier, the hon. member for Yeoville also mentioned yesterday that a Bill of Rights was more important at this stage than a constitution. He indicated that we already had a constitution. The point is, however, that this debate, this whole debate, is taking place because we are in the process of creating a new constitution.

In his speech yesterday the hon. member for Yeoville made a big issue of group rights being enforceable. Yet nowhere in the instruction is there any mention made of group rights. If the enforceability of group rights is so important then, surely, the hon. member should have included it in the instruction.

You are free to move an amendment.

Mr. Speaker, I know there is another instruction on the Order Paper, one which indicates that group rights have to be taken into account and have to be protected in terms of law. It is, however, certainly not stated in respect of this particular instruction, and, in any case, it seems to be totally contrary to the whole of the PFP policy. Groups do not exist as far as they are concerned. [Interjections.]

However, to get back to the matter now before the House, the PFP, throughout the whole of the debate yesterday, kept on referring to the constitution and to the Bill of Rights of the United States of America.

It is good example to follow. [Interjections.]

The hon. member for Bezuidenhout may well think so. Let me just make one point clear, Mr. Speaker. That is a matter of an uninformed opinion on the part of that hon. member. Anybody who knows very much about what is going on knows that America today is virtually ungovernable … [Interjections.] … and that the law has been so twisted and distorted that it has become so biased in favour of the criminal that half the criminals get off while the innocent people very frequently have to suffer. [Interjections.]

Order!

Mr. Speaker, I want to make it quite clear that those hon. members can yap American policy as much as they like. I personally want no part of their politico-legal system. In my opinion it stinks. [Interjections.]

Order!

Mr. Speaker, the hon. member for Yeoville also quoted the French rights-of-man philosophy, which was brought into being after the French Revolution. Does the hon. member seriously support a legal system in terms of which a person is guilty until he is proven innocent? Surely the hon. member should remember the Dreyfus case. Everywhere one goes in Jewish communities and people talk about French justice they throw the Dreyfus case at you. And that is now the sort of philosophy which the hon. member for Yeoville would like us to adopt. Mr. Speaker, I do not think I like that one either. [Interjections.] A Great issue is made by the PFP of the question of human rights. But I want to make the point, Mr. Speaker, that faulty as our human rights record may be—and I do not dispute that it may be faulty—I would submit that it is a darn sight less faulty than the human rights record of any country on our borders. I believe the hon. member for Yeoville has to be fair and honest and admit it, that is if he really wants to be honest, which some hon. members of the PFP do not want to be. [Interjections.] As far as I am concerned there is only one country in which there has been any form of entrenchment of human rights—as far as I know—in the form of any agreement at least. That was the Lancaster House Agreement in respect of Zimbabwe. And look now at what is happening there. Is that what the hon. member for Yeoville wants for us? I do not want it. If I wanted that sort of thing I would possibly go to Zimbabwe, and I suggest that might be a nice place for some hon. members of the PFP to go to. [Interjections.]

The hon. member for Yeoville says that human rights are not an internal matter today, and to support that he quotes the fact that in Germany, during the Second World War and in the years preceding that war, the Jewish community was brutally abused by the Germans. I concede without any equivocation that was one of the most disgraceful episodes in European history. I do not argue about that. It was indeed disgraceful. However, when one had an all-powerful Government that was prepared to throw the law out, to throw out the law books and burn them, as the Germans did, of what use would a Bill of Rights then have been anyway? It would have been a waste of time in Hitler’s Germany, and the hon. member for Yeoville knows it perfectly well. His family also knew it perfectly well. That is why they got the hell out of it and came here. [Interjections.]

Where were you at the time?

All right, I shall tell the hon. member. I fought them for several years too.

That is right. But where the hell did you come from anyway? [Interjections.]

I came from a place where they had real democracy since a thousand years ago already. [Interjections.] Sir, as far as I am concerned, Mr. Speaker, it is not an international matter except when it applies to countries like South Africa.

That is also not true.

Oh yes, it is quite true. Who really criticizes Russia? Who really criticizes the Third World?

Have you ever heard of President Reagan?

Oh no. That is very, very soft criticism. They think that we can be bullied. Well, if the hon. member is willing to be bullied, I do not belong to that particular category. I do not like being bullied; not by the hon. member either. [Interjections.]

Now, Mr. Speaker, I want to come to the hon. member for Edenvale. He raised the point of the free enterprise system and said it did not apply to the Blacks. I must be fair and honest and admit that to a very large degree that is perfectly true. [Interjections.] Does the hon. member agree that does not in fact apply to the Blacks to a large extent? However, Sir, whose fault is that?

The Blacks, obviously!

Oh, no. I agree that it is the fault of the Whites. To a large extent it is the fault of the Whites. However, who controls 56% of the Johannesburg Stock Exchange? [Interjections.] The Godfather and the wet-nurse of the PFP, Anglo-American! [Interjections.] They are the people who have pumped money into that useless party since its inception and have achieved very little for their money, so little, in fact, that I rather suspect that they are pulling out from pumping more in.

The hon. member also implied that Whites have certain rights that the other communities do not have. Here again. I believe we must accept this because it is true. Whites do have certain rights that other people do not have. However, those hon. gentlemen wish to deny our passing those same rights on to the Indian and Coloured communities because we are not giving special rights to the Blacks as well. The opinion of the NRP is that the Blacks should be included in the mainstream of government as well but we also accept the fact that an improvement of this nature certainly is progress. We will not withhold the opportunities that the Indian and Coloured communities have of becoming part of the mainstream of politics by adopting an ideological attitude. We believe that in the long run the non-homeland Blacks will have to be part of the mainstream of government. At some stage when this Parliament comes into being we shall be playing a new ball game. However, those hon. gentlemen over there do not want a new ball game at all. They do not want to see any progress. They are like the people who say: We vote Prog but thank God for the Nats! [Interjections.] Those hon. gentlemen do not believe in many things. They do not believe that there should be discriminatory rights. It is quite obvious to me that if those hon. members were in Government they would remove all tribal rights. They would even remove the rights of polygamy. Boy, would they be popular! [Interjections.]

The hon. member for Pretoria West indicated that this instruction was illogical and had been drafted carelessly. I too believe that it is illogical and carelessly drafted and I propose to deal with one or two parts of it in order to show why I consider it to be so.

In his preamble to this instruction, the hon. member for Yeoville says that he wants a Bill of Rights that will guarantee the rights and freedoms of the individual. Are that hon. member and his party so naïve as to believe that in Africa, this continent on which we live, where it is universally accepted that might is right, where most of the countries find themselves with a one-party State where tribalism, nepotism and corruption are rampant, a Bill of Rights is going to serve any useful purpose? [Interjections.] A Bill of Rights as envisaged by those hon. gentlemen is totally foreign to the concept of African leadership. I believe that the only people who would put forward this sort of proposal are dangerous dreamers.

May I ask the hon. member a question?

No, Sir, because the hon. gentlemen on that side would not answer any questions from these benches. I say that I believe that those people are dangerous dreamers because if they were in Government they would be jeopardizing not only their own future—although, as far as I am concerned, it would not worry me if they had no future—but they would also be jeopardizing the future of their children and the rest of their community as well as the future of the Coloured and the Indian communities. That is what they would like to do and that is in effect what would be the case. Further they would jeopardize the future of many of the minority Black groups. Do they really believe that if this Parliament as it stands were to produce this Bill of Rights which they want and subsequently there were a Black Government that came into power, that Black Government would say that they must adhere to the Bill of Rights? Do the hon. members really believe that would happen? Would the Black Government not say: “Ha, this is a White man’s trick to look after his own interest in case something goes wrong.”? Of course that is what they would say and then they would tear it up and throw it out of the door. [Interjections.]

If this Bill of Rights concept is so marvellous for the hon. members, why is it that all these independent States around us, Angola, Mozambique, Zimbabwe and Zambia, do not have Bills of Rights?

What about Bophuthatswana?

Bophuthatswana is all right. The exception proves the rule. Does the hon. member not know that old English expression? [Interjections.] If this would have been such a marvellous thing in the African context, they would have accepted it.

I now come to paragraph (b) in terms of which we must have freedom of expression as well as freedom of thought, belief and opinion.

That is your stupid expression.

Yes, my stupid expression, if you like. Harry, you are losing your temper, my boy. [Interjections.]

Order! The hon. member for Umbilo must refer to other hon. members of the House as hon. members.

Sir, the hon. member for Yeoville is possibly losing his rag.

They say that we must have total freedom of expression. If a person wants to have total freedom of expression, does it mean that he can use seditious language or does it mean that he can advocate violence? No, but who says he cannot? It does not say so here and at the end I shall say why too. Further a free Press is called for. What do they mean by a free Press? Do they mean free to publish anything they want, regardless of the effect? Of course they do not mean that. Even the PFP is not so silly as to advocate that. There is a proviso, but what a funny sort of Bill of Rights that has a proviso! Who decides whether the security of a community can be jeopardized? Who is to decide that? I should like to suggest, when it comes to the freedom of the Press, that any of the pressmen who move around in the other States contiguous to South Africa should be asked how our freedom of the Press compares with freedom of the Press in the adjoining States. I should like to suggest that there is a hang of a lot more freedom here than there is anywhere else. Furthermore, without Bills of Rights in the other States and without Bills of Rights here, this has come about. They, the contiguous States, have a tight Press system where they throw people of the press out at will. They ban what is written and they censor left right and centre, but at least in South Africa, with its imperfections again—I conceded that there are imperfections—it is a darn sight better than elsewhere.

In terms of paragraph (e) there must be no discrimination. It says unequivocally “no discrimination at all”. Must we scrap the protective provisions in our industrial conciliation legislation in so far as women are concerned, because they are discriminatory? Must all education be geared to the White culture or must we gear our education to the Black culture? If there are differences, then there is discrimination. Must we have the same marriage laws? Again, as I have mentioned, must we have several wives or must the Blacks only have one? [Interjections.] I mean one cannot have discrimination—that would be impossible! They do not say “unfair discrimination”; they say “no discrimination”. That is why I say this is nonsense. These are just a few of the thousands of desirable instances of discrimination, but the Instruction calls for no discrimination.

In paragraphs (f) and (g) the hon. member calls for equal legal protection in accordance with the principles of fundamental justice. Now, what is meant by “fundamental justice”? Does it mean justice as per Roman Dutch Law, as per tribal law or as per the Mosaic Law? We must remember the Islamic people here are married according to Islamic rules and rites in which they apply many of their principles. If, generally, Islamic justice were to apply, then, if one were to steal, one would get one’s hand cut off, if one were to drink, one would get one’s back whipped, and so forth. What, then, is this fundamental justice? Is everybody, alternatively, going to be forced to apply Roman Dutch Law? No, Sir! That is why I say it is illogical to ignore group differences. One must accept there are group differences—is wickedly discriminating and grossly arrogant to ignore them.

Paragraph (h) is another peculiar one. I cannot quite understand it. Perhaps I am a little bit lacking in intelligence. [Interjections.] I know that the hon. member thinks that. However, he calls for equal opportunity in the social structure. Words, words, words! What the deuce does it mean? I know that, as far as I am concerned, I can associate socially with anybody who is intelligent enough to wish to associate with me. [Interjections.] What is more, they can associate with me. It goes both ways. I should therefore like to say that this is again a lot of nonsense. It does not really mean very much at all.

Then, in accordance with the proviso, such freedom shall be absolute provided it does not infringe on the rights of others and, further, does not endanger the security of the community. Who is going to judge this? Who is going to take the immediate action if someone feels that his rights are being infringed or that the community is being endangered? Are the Police, or whoever is going to take this action, going to go in fear and trembling of being hauled up before the constitutional court every time they take action? This is again nonsense.

In my opinion the so-called Bill of Rights is a useless proposal which might work, albeit imperfectly, in the United States, but, frankly, would never work in Africa. It is full of impractical and unrealistic idealism which could never be enforced without destroying, as has been mentioned by others, our legal structures by overloading them. Furthermore, it would make this country totally ungovernable, which is perhaps what those hon. members want. As a preamble to strive for, it would largely make sense. I concede that it is something to strive for …

If it is idiotic, why strive for it?

If that were the case, we would be able to support it. However, to try to introduce it as a definitive legal imperative indicates a total lack of understanding of government and a total immaturity on the part of the hon. members of that party.

Mr. Speaker, I thoroughly enjoyed the speech made by the hon. member for Umbilo, as I am sure every other hon. member in this House did. Although I do not agree with all his arguments, there is no doubt that we have arrived at the same conclusion on the question as to whether this instruction should be supported.

Very diplomatic!

We are slowly approaching the conclusion of this debate, and I would not like to repeat any of the arguments we have already heard, but there are a few matters I want to examine. Firstly, I want to question the motive of the official Opposition in moving this instruction, the motive of the hon. member for Yeoville, in particular.

[Inaudible.]

I should really appreciate it if the hon. member for Bryanston would try to keep quiet when another hon. member is making a speech.

Let us look at what hon. members of the official Opposition have in mind, not in terms of the instruction, but in terms of their own proposals for the development of a constitutional process in South Africa. They say that the very first thing they would do after coming to power, would be to call a national convention. They do, in fact, have a plan for a constitution, but they have expressly stated that they would not implement that constitution—that is the undertaking they give—before having obtained approval for that plan at a national convention on the basis of consensus. It is significant that they say that in this process of a national convention, in which they and all of us would seek consensus on a future dispensation in this country, the government of the day, which would be they, would have to proceed to remove discrimination in an orderly way so that they could create a better climate in which consensus could, in fact, be reached at that national convention. What are they doing with this instruction to this House, however? It is my contention that the hon. member for Yeoville placed this instruction on the Order Paper knowing that it would not be accepted by this House. If he had thought for one moment that it would, in fact, be accepted, he would not have come forward with this motion. Why do I say that? I am not levelling this accusation at all hon. members of the official Opposition, since I think there are a considerable number of them who would very much like to see it accepted. I shall tell you why I think so.

Yesterday the hon. member for Pinelands was asked what would happen if this Bill of Rights were, in fact, accepted and whether this did not mean that practically all existing legislation would have to be repealed in terms of decisions by the courts and in implementing this Bill of Rights.

Yes.

The hon. member says “Yes”. He referred to the case of his own son, who would consequently not have been restricted. What is he really saying? He is saying that everything they regard as being unjust and in conflict with basic rights, in terms of the law, in the judicial sense, would be done away with immediately. This Bill of Rights would ensure that we would immediately have a community in which everyone would be equal. By implication, every aspect of our existence, of the constitutional dispensation and participation in the constitutional process as well, would be on an equal footing. The hon. member is again nodding assent. This means that we will have reached a situation in which we shall have the right to participate constitutionally—if all freedoms have to be accommodated in it, this will also include the right to vote—and everyone will be able to vote on the basis of “one man, one vote”, without any checks and balances having been incorporated into the system. Once again, the hon. member is nodding in agreement. The policy of that party, however, is that it rejects a system of “one man, one vote”. They do not want that, and they believe in a large number of other mechanisms that first have to be incorporated into the system before there can be universal suffrage. That is the standpoint of that party. If I understand the headshaking of the hon. member for Pinelands correctly, he is saying “No”.

Mr. Speaker, does the hon. member concede that his Government has refused to call a national convention, which is part of our plan, and therefore if you are faced with a Bill and you want to improve that Bill in the circumstances in which you find yourself, it is reasonable to try to bring about the introduction of a Bill of Rights to achieve things you would normally try to achieve in other ways?

I readily concede that, but this once again points to the irresponsibility of that side of the House. They say that when they govern and have all the power, they will go about establishing in a certain way an order in which, in their opinion, we will at least have stability. However, the hon. member says that, while he is still in the Opposition benches, he is prepared to compel another government, in accepting the instruction, to do something he himself would not do if he were in power. Can the voters of this country really trust hon. members on that side of the House if that is their attitude to the future development of constitutional change in this country? I maintain that their real motive is to try to achieve through the courts what they cannot achieve through Parliament. They expect the courts in an inferred sense, to become the legislator which has to interpret matters in respect of which they are not empowered to incorporate any checks and balances into a constitutional system. That is the height of irresponsibility.

I want to develop a second idea. Let me ask whether the protection of individuals in this country really lies in a Bill of Human Rights, or whether, in fact, it lies in the effective operation of a system. I maintain that it does, in fact, lie in the operation of a system. Of course, it lies in the implementation of what is envisaged with a Bill of Rights. However, its implementation—that is the argument—is guaranteed by the operation of a system rather than by the mere existence of a Bill of Rights.

The hon. member for Maitland argued this point in detail yesterday afternoon. He pointed out that a Bill of Human Rights can really only confirm rights that have been gained or inquired. It does not create rights. The operation of the system must do that. There is a great deal of proof for this. I shall quote what is a reliable source, in the view of those hon. members. Firstly, I want to quote from the Sprocas Report on Political Alternatives for South Africa. It is stated on page 17 that—

It goes on to say—

We know that this has not been happening only for a decade, but for many decades. What is therefore really fundamental, is that the operation of the structure and the attitude of the community—I shall still come to that—really determine how it is interpreted. Therefore, the Bill of Rights means nothing on its own. The operation of the system and the attitudes accompanying it are what are really significant.

Yesterday the hon. member for Bezuidenhout also referred to the Constitution of the Free State, into which a Bill of Human Rights is incorporated. He mentioned three aspects in that regard. If the hon. member were to think back to that time, and the right to own property was to have been implemented, does he really mean to say that right to own property would have been interpreted in the same way by the citizenry as it is interpreted in respect of Black people today? Surely he must concede that is not the case. Consequently, the existence of a Bill of Human Rights does not mean a thing if it is not supported by the system in every respect and accompanied by the right attitude.

I want to refer to another piece of authoritative writing. I am referring to South Africa’s Options, published by the hon. the Leader of the Opposition and David Welsh. The following is stated on page 155—

It seems to me that the hon. the Leader of the Opposition still stands by that. If that really is the best basis to ensure that, surely this is the way to go about looking for it. Then surely we must accept that it is right. I regard this as good authority on this point. There are many other aspects in this book one could disagree with, but I am really using this as evidence against those hon. members, on the basis of their leader’s pronouncement. The hon. the Leader of the Opposition also refers to the protection of group rights in the section I quoted. He does not discuss group rights any further in this book, nor are hon. members discussing them under the motion before this House. He and his co-author go further, however, and say, nevertheless, that consideration could, in fact, be given to such a Bill of Rights—

However, nowhere in the argument is there any question of incorporating group rights into the Bill of Rights. Of course, there is also the other consequence I just want to point to briefly, and that is if it were to be implemented by a judiciary, one would not only be politicizing the judiciary, in the sense of appointments, but one would also be dejudicializing it, since it has to make its decisions on the basis of equity, of the interpretation of a standpoint. Then it would really only become an appendage, by proxy, of the executive authority that appoints it to interpret and implement a policy, as happened in America. This aspect will be discussed in detail this afternoon and tomorrow when we discuss the next instruction that appears on the Order Paper.

There is a third point I want to deal with briefly in broad outline, and that is the concept of equal opportunities, in terms of this Bill of Rights. In his Grammar of Politics, Lasky deals with this aspect in detail in almost every chapter, and he says that the notion of equal opportunities is false. It is not complete, since it does not really exist. It neither exists before the law, nor before a court of law, in the sense that the wealthy man can get away with things the poor man cannot. For example, he recommends that if one really wants to seek more equality before the law, not only must the State provide the funds for the prosecution, but it must also provide funds for the effective defence of the accused. Let us specifically take the two points in paragraphs (d) and (h) of this instruction, where the issue is equal opportunities in the economy. To testify to this, let me refer once again to what the hon. the Leader of the Opposition said on page 158 of his book, viz. that we should not reject the idea of affirmative action, since we also have a responsibility in that regard. It goes on to say—

It is ironic that the hon. the Leader of the Opposition should refer here to the hon. member for Yeoville as a radical—

It goes on to say—

It is important that we take cognizance of the fact that he sees it as an antithesis: The antithesis of liberty and equality.

The hon. member for Walmer spoke about a “Bill of Responsibilities” in his speech yesterday. I almost became excited when I heard that term. However, he then went on to emphasize the market idea, the market mechanism.

†He referred to the equality of opportunity. The equality of opportunity means nothing if it cannot bring about something in real terms to those who are granted the opportunity.

The hon. member for Edenvale argued on the same note and referred to this “opportunity”, this “right to be able to” as the hallmark of a civilized society.

*I ask whether there is any sense in arguing in terms of granting an opportunity if nothing issues from that opportunity.

During the course of his speech, the hon. member for Yeoville made a remark which disappointed me somewhat. In fact, it upset me. He made the statement that we should avail ourselves of this opportunity, since it could perhaps be the last opportunity we may have to do something for “our” people.

On our own, in this Parliament.

Yes, on our own, in this Parliament, for “our” people. For example, he spoke about “our own power base”. One infers from this that the motive behind this motion is not to benefit others, but to grab something for oneself. This is what we must infer from that statement of the hon. member. The impression I gain. Sir, is that those hon. members should like to have something on paper, whilst they do not give a tinker’s damn about what its effect will be. They simply want to salve their consciences. They do not want to be weighed down by their consciences. Therefore, if they can say on paper that opportunities are equal, it is good enough for them.

Is there something wrong or immoral in seeking to enact protection for the White community, a form of protection which at the same time will also protect the other communities?

I tried to explain that the moral thing to do is to seek something which benefits everyone equally. That must be the motive. The motive must not be to benefit my own group and simply to assist the others coincidently in the process. It must be to the benefit of all. The hon. member disappointed me in that sense.

The hon. the Leader of the Opposition smiled when the hon. member for Turffontein—I think it was that hon. member—referred to humanism as the basis of human rights. On the other hand, the hon. member for Maitland referred to the Ten Commandments and pointed out that no mention is made in them of the rights of people, but of their responsibilities. Therefore, from a Christian point of view, rights are not what it is all about, in contrast to the philosophy of humanism. On the contrary, responsibilities are what it is about, the responsibility to assist others, to care about them. In fact, the hon. the Leader of the Opposition himself said that we should set goals for ourselves to assist people and that we should pursue those goals in a positive way.

Let me call upon another authority to give evidence on this point. He is Prof. Degenaar, in his Voortbestaan in Geregtigheid. On page 137 he says—and this is the attitude I am pleading for … [Interjections.] Sir, if the hon. member for Rissik wants to ask a question, he may do so.

Is Prof. Degenaar one of the 19 academics?

I have not seen the names of the 19, but I am reasonably sure that Prof. Degenaar is not one of them. In any case, I am calling upon him to give evidence, since at least he is someone who enjoys a high status in the ranks of that party. On page 137 of his book he states a truth of great significance—

In other words, our attitude should be one of always wanting to assist one another, and not claiming things for ourselves, since it is in laying claim to things that conflict arises.

I am making a plea that we as politicians also accept the responsibility not only take this action ourselves, but also to appeal to our voters, as well as to those who do not vote for us, to go forward with a responsible attitude to care about one another, to give to others, rather than claiming what we want for ourselves, thereby creating a situation of conflict with others. If we can succeed in that, we can create a climate in which development can take place. Then at least we can establish an attitude on the fundamental level from which development can proceed to take place and from which we can co-operate—and this is the appeal I am making to all hon. members—to establish a system through an evolutionary process by means of which we can give systematic substance to the rights of people and the recognition of the human dignity of all people.

Mr. Speaker, I listened with great interest to what the hon. member for Randburg had to say. I must say it was a pleasant contrast to listen to his reasoned argument—even though one does not necessarily agree with the conclusions he reaches—in comparison with the idiotic speech made by the hon. member for Umbilo, on whom I will waste very little of my valuable time. The hon. member for Umbilo does not even know that polygamy is not recognized as legal in South Africa. There is only a legal civil marriage in South Africa, although customary marriages and common law marriages are recognized for certain purposes. However, I shall leave it at that.

The hon. member for Randburg has expressed, I believe, some very high-minded sentiments here today. He has asked us to regard the legislation comprising the new constitution in the light of trying to meet each other’s objections so that we can create the right climate, etc. Of course, Mr. Speaker, we would be very anxious to accomplish that. I do wonder, however, how the hon. member thinks that is possible when over and over again we are told that 70% of the population is excluded; that is a principle of the Bill. The hon. the Prime Minister, only during the last 24 hours, has repeated that at a meeting, where he stated that not in his lifetime or in his children’s lifetime could he see any extension of constitutional rights to Black people. [Interjections.]

The hon. member for Randburg also said he was not sure of the motive for the introduction of the instruction by the hon. member for Yeoville. Our motive is also to create a climate of understanding of what an alternative policy could mean to South Africa. If we reject the Constitution Bill it does not mean that we want to go back to the status quo. We wish to go forward. We wish to show South Africa that there is a third way—not the status quo, and not the suggestions contained in the proposals in respect of the new constitution offered us by the Government, but an altogether different way of life in South Africa.

Complete chaos, you mean.

Our reason for moving the instruction which is now before the House, is to give the country some idea of what we would want. It is also not in conflict with our proposal that we have a national convention of all groups before we come along with those final proposals. There is nothing which is in conflict with a federal system in a Bill of Rights. America has a federal system; it has a Bill of Rights. West Germany has a federal system; it has a Bill of Rights. Canada has a federal system; it has a Bill of Rights. There is nothing which is in conflict with the protection of minority groups in a Bill of Rights. Indeed it is what it is there for, because although individuals are mentioned in the instruction moved by the hon. member for Yeoville, individuals make up groups, and therefore it is also extended to groups.

Our second instruction, which will be moved by the hon. member for Sandton, in its third leg, makes specific mention of the protection of groups as well. There is therefore nothing in conflict with that. There is nothing which is in conflict with our proposal of proportional representation. Again, in Germany, there is proportional representation. I leave the hon. member there. The rest of his arguments were on a very intellectual level and I am quite sure the hon. the Leader of the Opposition will be happy to argue with him at a later stage of this debate.

I want to come back now to the instruction which we are discussing this afternoon. Having listened very carefully to all the arguments put forward here yesterday and today, it is very clear to me that what this debate is all about is whether one is basically in favour or not in favour of human rights. That is really what it is all about. It has also become very clear that the only party in this House that really endorses the concept of human rights is, in fact, the PFP. The CP speakers have made it clear that they do not want to move at all. If in fact they do want to do move, they are going to move backwards. They are certainly not going to move forwards in this regard. They have made that absolutely clear. In fact, they talk darkly of this as a “leftist plot”; they say that this instruction is a leftist plot. The hon. member for Yeoville has suddenly become a leftist! Welcome to the club! [Interjections.] That is all I can say.

The NRP, of course, stick to their idea of local option and all one need do is to translate that into real terms. All it means is the preservation of race discrimination and of exclusive White privilege. That is all it means. If there is to be local option, then the local White people who want White privileges will opt for the intention of exclusive White privilege. Therefore we are not in favour of that at all. The hon. member for Durban Point, the leader of the NRP, said that if this instruction in respect of a Bill of Rights was accepted, it would lead to a an orgy of litigation. Well, all I can say is that we welcome that orgy of litigation. If it is going to mean the removal of discriminatory laws from the Statute Book, then we are all in favour of an orgy of litigation.

[Inaudible.]

No they are not; of course they are not. Most of the laws that entrench discrimination stay untouched by human hands.

But cannot they be removed?

There is not the slightest chance that they will be removed unless there is something to force it. We saw what happened in America. Not only was the Bill of Rights used in order to overthrow the separate but equal concept and say that there was no such thing as separate but equal—there was only separate but unequal; the 1954 piece of legislation—but there had also to be civil rights legislation which made it necessary for the States to adhere to the doctrine of equal facilities for everybody, not separate facilities, and they were denied federal financial aid if they did not go ahead and do it. Therefore, this sort of thing has got to be enforced. Laws are educative. They make people think in a certain direction. However, there has to be enforcement of those laws, otherwise they are pretty useless.

Hon. members on the Government side have advanced an interesting argument. It was, I think, the hon. member for Pretoria Central, who has since disappeared from the scene, who advanced the argument that the instruction was unnecessary because most of the rights mentioned in the instruction were protected by common law. That, of course, is absolute nonsense. Common law governs only when there is no statutory law, and statutory law applies to practically every one of the eight clauses mentioned in the instruction. The only one to which no statutory law applies is the first one which relates to conscience and religion. There is no statutory law in this respect. Common law protects us as far as freedom of religion and conscience is concerned, However, every other one of these provisions is governed by statutory law and therefore the common law offers no protection at all. Take, for example, paragraph (b) which refers to freedom of thought, belief, opinion and expression, including freedom of the Press and other media of communication. It is a joke to say that is protected by common law. Every editor of every newspaper will tell you that he walks a minefield every time he publishes an article, because there are statutes prohibiting, for example, the publication of any of the statements of banned people. This is also the case in regard, inter alia, to Defence, Police, Prisons and petroleum, in respect of all of which restrictions are imposed. Paragraph (c) refers to freedom of association, peaceful assembly and movement. Well, has anybody here heard of the Separate Amenities Act? I think it was the hon. member for Pretoria West who talked about “separate but equal” being the law in this country. There is no such thing. The Separate Amenities Act makes it possible to have separate but unequal public facilities in South Africa. It says so expressly. There is also the question of the prohibition of meetings.

May I ask you a question?

Yes, but be jolly quick.

Will you tell us whether freedom of association includes associating with the Communist Party?

That is one of those silly, trick questions. Any party that proposes to overthrow the State by means of force will not be permitted. That is normal…

Does that apply to the Communist Party?

Yes, if it professes to have that as its policy.

And the ANC?

The ANC has already announced its intention to use violence. If, however, a party comes along and says that it has a policy for the nationalization of the mines and the ownership of the means of production by the State, that will be allowed, and yet that is communist doctrine, it is Marxist doctrine. If that is put across from those benches, there will be no objection. This was done by the Labour Party in England. [Interjections.]

What about Swapo?

External Swapo also professes violence. Any party that professes violence is out as far as we are concerned. That is the common law, for heaven’s sake! [Interjections.]

Order!

As far as freedom of association is concerned, will the hon. member tell me how he feels about the Prohibition of Political Interference Act now that we are having all the new laws with Coloured and Indian parties brought in? Is it not time that went? What about section 16 of the Immorality Act? What about the provisions of the Prohibition of Mixed Marriages Act? Do those laws guarantee freedom of association? Freedom of movement is guaranteed by common law according to those hon. members. Have they never heard of the pass laws, of influx control? To pursue the gaining of a livelihood is also restricted by the pass laws and influx control, and also by the Group Areas Act because that prohibits people from trading in the areas in which they want to trade or buy property. So I can go on through every single one of these clauses.

There is also prohibition of discrimination on the grounds of race, colour, sex or creed. Is that protected by common law in South Africa? There is also the question of deprivation of life, liberty, security etc. What about the Internal Security Act? I have sat in the House for 30 years, heaven save me, and I have been a witness to one erosion after the other of the rule of law in South Africa and so I speak with authority on this subject. I have been witness to the erosion of civil rights in this country and to the increase of legislation which contains racially discrimination. Year after year I came back here and I thought: “They surely cannot think of anything more”, but they did. Every single year there were more discriminatory laws and there was a further erosion of civil liberties.

I have with me a volume of statutes. What does it say? It does not have several labels down it covering several subjects. It says very simply “Blacks”. This entire volume of statutes is full of laws relating only to Blacks.

Is there nothing in those laws to the benefit of the Blacks?

I doubt that very much. It is quite true what the hon. member for Durban Point has said—i.e. if this instruction is accepted, the whole foundation of apartheid would collapse. We say jolly good show, too; the sooner the better! [Interjections.] The trouble is that those hon. members have not moved an inch since Union, really. At Union the idea of rights for Blacks was not discussed, in fact it was part of a trade off. The rights which existed for the Coloured people and the Black people in the Cape Province were preserved on condition that they were not extended anywhere else. The idea of further extension of political rights for Blacks was not on the agenda and it is not on the agenda now in terms of the new constitution. The founders of Union opted for the Westminster system which all of us agree has not been very suitable for our particular society, because it is based on traditions and conventions which in fact are suitable only for countries that acknowledge those traditions and conventions, such as Britain. In South Africa we have abandoned the traditions which have in fact become entrenched in Britain. The hon. member for Yeoville has traced the history of the British, constitutional system, originally based on a written Bill of Rights which was superseded simply by a body of accepted customs. I want to say, however, that there is a growing body of opinion in England which is proposing a written Bill of Rights even for Britain. I also want to say that Britain subjected herself to certain written conventions when she joined the European Community. Two other things follow. There is a commission and there is a Court of Human Rights, and their decisions have the force of law, even domestically. Once countries have accepted the jurisdiction of the European Court of Human Rights, any decisions taken by that court have the force of law. There is a very good example of this. When Britain was taken to the court by individuals who protested against methods of interrogation in Northern Ireland—hon. members will remember this—and was found guilty of violating normal forms of interrogation and behaviour towards prisoners, it had to accept the jurisdiction of the Court and indeed has done so. Since then Britain no longer uses those methods. It therefore has the force of a legal regime. That is therefore a good example.

We know what happened in the US. We know that they never ever relied on an unwritten constitution and that they have a Bill of Rights. There is no question about it that the Bill of Rights and judicial supremacy have played a very important part in America in the extension of rights and equality to members of different races.

Parliamentary sovereignty in this country has unfortunately been used, if anything, to put the clock back, for instance with the removal of the Coloured voters firstly from the common roll and then from a separate roll. And parliament of course never hesitates to use its sovereignty, if necessary, to protect the Government against the courts of law by passing retrospective legislation. That has been done recently, this session, with the Laws on Co-operation and Development Bill in respect of the Moutse decision. It was also of course done a few years ago when the Defence Act was in fact abused by this Government. The Government had to come back to Parliament and pass retrospective legislation to legalise what it had done illegally.

Would it not be a great day for South Africa if today we were launching a new constitution in an entirely new direction, with a new system which would take us closer to the values of Western democracy? Would it not be a great day for South Africa if we were doing that?

Why not African democracy, since the majority of people in South Africa are Black people?

Well, the hon. member may consider this a Third World country, but I consider it to be basically a Western democracy, which does, however, have Third World elements attached to it.

The majority are Black.

No, it is not the major part. The hon. member forgets about the urbanized Black population, the urbanized Indian and Coloured populations and the almost totally urbanized White population. We are basically a Western democracy. We are basically an industrial country, although I will grant the hon. member that South Africa is also partly Third World.

Do not play that down.

But do we not want to move towards the values of Western democracy rather than towards the values of the Third World? Surely that is what we want.

I believe that the instruction which has been moved by the hon. member for Yeoville takes us closer to the whole concept of Western democracy. I admit that one needs an independent judicial court of review to make it work and such a Bill of Rights would of course not be worth the paper it is written on if it were not entrenched. In that case it would be as worthless as the preamble to the Constitution Bill, which is not entrenched and against which a court of review could therefore not test the validity of laws. I think it was the hon. member for Turffontein who quoted Judge Corbett as saying how difficult it would be to introduce … [Interjections.] Well, one of the hon. members did so.

It was the hon. member for Pretoria West.

Yes, the hon. member for Pretoria West, and I hope he has noticed that I am in blue again, because he always likes me in blue …

It still suits you.

The hon. member quoted Judge Corbett as saying how difficult it was to introduce a Bill of Rights. But he did not tell us how the judge ended his peroration to that Conference on Human Rights. I will tell the House how he ended. He said—

Here we are entering the road that lies ahead. Mr. Justice Corbett said that one of the more hopeful possibilities is to introduce a Bill of Rights in South Africa. That is exactly how we feel. We think we should take this opportunity to plan for the future. If not for this generation, let us at least do so for future generations. I know that most hon. members here cannot envisage a South Africa where White domination is not the basis of the legislative and constitutional system. They think there has to be White domination or there will be chaos. The Republic could never be a non-racial country governed by members of all races, which is what we propose. We do not propose the alternative of a Black majority government, but a government which is made up of people of all races.

One man, one vote.

Yes, “one man, one vote”, with safeguards for minorities. Hon. members always forget about that.

Some of us believe that a system that is so antagonistic to the thinking of the entire Western World today and certainly as antagonistic if not to the practice but to the rhetoric anyway of other countries outside the West, cannot survive forever. We think a little forward planning in the interests of our children and grandchildren would not be a bad idea. That is why we want to entrench a Bill of Rights guarding human rights.

There were three important points made at the conference referred to by the hon. member for Pretoria West, namely the International Conference on Human Rights in South Africa which took place at the University of Cape Town in 1979. These points were made by the man who actually took part in the famous Brown vs. The Board of Education case in 1954. He was the lawyer who presented the case, Mr. Jack Greenberg. I think he made three good points.

He said that we assume that force cannot succeed indefinitely. The hon. member for Pinelands pointed out so eloquently last night that there are certainly members here, like the hon. member for Pretoria Central, who believe that the man with his finger on the trigger is the man who is going to determine the future of this country. However, there are others of us who hope for more peaceful solutions for South Africa. We believe with Mr. Greenberg that it is a good idea to begin the nurturing of institutions and habits of freedom in the form of a Bill of Rights as early as possible, because the longer it remains in effect, he says, the more likely it will be to survive a change in political systems. People should get used to the idea of a Bill of Rights so that should a change in political systems come, whether it is a non-racial Government or not, it will still be respected, because people will be used to it. I might say that the converse has proved true in Africa. It is Mr. Smith’s regulations and laws that Mr. Mugabe is using with good effect at the moment in so far as censorship, detention without trial, etc., are concerned. It is because the country had got used to that sort of legislation that the new government was able to continue to use it. I believe that we should now go in a direction where we get used to being governed under the rule of law and under a Bill of Rights.

The second point made by Mr. Greenberg, quoting Jefferson in 1788, was that “although a Bill of Rights is not absolutely efficacious under all circumstances, it is always of great potency and is rarely inefficacious”. The third important point which was actually also mentioned by the hon. member for Yeoville, but not by quoting Mr. Greenberg, is that this would improve our relations with the West. It would improve our standing in the outside world. Mr. Greenberg put it this way—

We believe that a Bill of Rights as proposed by the hon. member for Yeoville would enhance our relationship with the outside world. Interestingly enough, this was recognized a long time ago by the Minister of Foreign Affairs and Information, because when he made his maiden speech in this House—he made his maiden speech in 1970 as the hon. member for Wonderboom—he said that it was too bad that South Africa was isolated from the Western World because she had not signed the Universal Declaration of Human Rights. As we all know, it was General Smuts who was the author of the preamble to the United Nations Charter. But South Africa, as was pointed out by the hon. member for Pinelands did not sign the Universal Declaration of Human Rights. Nor did the Soviet Union and Saudi Arabia. The then hon. member for Wonderboom pointed out that it was a pity that we did not identify ourselves with that declaration to a greater extent. He said that “the sooner there was identification with those elevated objectives, the clearer those objectives would be defined and the more earnestly we could exert ourselves for achieving those objectives”. That was way back in 1970 and I am not going to quote the hon. member further. I can give hon. members the column reference if anybody wants it. It is in Hansard, Volume 29, column 2166. The hon. member then mentioned some of those elevated objectives, i.e. the right to live, to freedom, the right not to be arrested arbitrarily, the right to privacy, the right to, leave one’s country, the right to own property, etc., etc. It is now 13 years later, 13 years since the hon. Minister of Foreign Affairs and Information made that speech as the hon. member for Wonder-boom. We are examining a new constitution and there is still no broad consensus on the question of fundamental rights in South Africa. There is no overriding convention relating to the protection of civil rights. Instead we are examining a new constitution which places absolute power over the rights and liberties of all South Africans in the hands of one race group in South Africa.

More than ever I believe, it is essential to have a Bill of Rights now to protect the individual South African from the denial of those rights. I may say that even with a Bill of Rights, a new constitution based on the legislation that we will be considering this week will be fraught with danger for democracy and for peaceful co-existence in South Africa. However, without a Bill of Rights, the Republic of South Africa Constitution Bill will open the door wide to a further loss of civil liberties by all South Africans because, in short, we are going to have a one-party, one-group dictatorship in South Africa.

Mr. Speaker, this debate produced many interesting features. One of them was the fact that we began with the hon. member for Yeoville and ended with the hon. member for Houghton. We came full circle therefore. If I may refer to the Old Testament, I want to say at once that while I was listening to the hon. member for Yeoville I was reminded of the history of Esau and Jacob. I heard the voice of one, but the hands were the hands of another.

Do you know which is which?

Unfortunately not. It was very interesting to note that the hon. member for Yeoville did not avail himself of the opportunity, prior to the acceptance of the principle of the Constitution Bill, to present the motion which he has now moved here as an amendment to the Second Reading. He could have done so within the rules of this House. The fact of the matter is, however, that the hon. member did not participate in the Second Reading, and I do not think the hon. member is a person who does anything without a specific reason. Up to now, however, we have not yet ascertained the reasons why the hon. member omitted to participate then and the reason why he did participate now. Because we have not ascertained his reasons, we may speculate on them for a while now.

Let me begin by saying that the hon. member’s formulation of his instruction was not borne out of his reasoning in support of it. If one reads the instruction one finds that this conclusion is correct.

Sir, I think it is a good thing that we are conducting this debate. In spite of what hon. members expect, I say that although it came at a very late stage it was nevertheless a good thing that we held this discussion. I would like to assume that there is no one in this House who is not in favour of the protection of human rights.

Not everyone is.

I should like to give hon. members the benefit of the doubt by making the general statement that all of them would like to protect rights. I do not think we should be so intolerant as the hon. member for Yeoville and his party as to think that only they have found the formula for a Bill of Rights.

We never said we had.

I really do not want to get into a debate with the hon. member for Bryanston. I should like to conduct this debate in the spirit displayed by the hon. member for Yeoville. Let me say at once that he formulated his contribution in reasonable terms. He stole the limelight for two days. Nevertheless, the fact remains that the acceptance of this motion would imply certain consequences. The hon. member for Houghton referred to this, and I shall return to it later. I maintain that the motion and the arguments of the hon. member and his supporting speakers—some of them were an embarrassment to the hon. member; they could not see him, but I could, because I sit right opposite him—were based on certain erroneous or false premises, standpoints or points of departure. The first erroneous point of departure—the hon. member for Houghton’s entire argument confirms my conclusion—was that in heterogeneous, undeveloped or developing societies it is possible to maintain and preserve civil rights in the same way and with the same instruments as in highly developed homogeneous societies. That basic error of reasoning destroys the hon. member for Yeoville’s argument. I shall prove it to him from his own quotations.

That is the fallacy of your approach.

The hon. member must give me a chance. I did not engage him in a dialogue.

The second erroneous and false premise is that a correlation, a connection exists between a Bill of Rights which is enforceable and the level of the preservation of those human right and freedoms of the subject. I say this is an erroneous premise because the preservation of rights, of civil rights and freedoms of the subject, is not related to an enforceable Bill of Rights. The third premise which is erroneous, one which flows from the previous one, is that the non-inclusion of an enforceable Bill of Rights amounts to the rejections of the concept of the preservation of rights and freedoms. The fourth erroneous premise is that the courts, in taking over or partially taking over the functions of the legislature, are better able to protect civil rights than the legislature itself. The fifth erroneous premise, and the hon. member may as well listen now, is that with a Bill of Rights race discrimination disappears in a utopia of future perfection.

Allow me now to test these statements now. As a Government we believe, and I know that the hon. member for Yeoville also believes this although it is not expressed in his motion, that in the reality of the society of South Africa—I need not describe it to hon. members—it is impossible to protect the rights and freedoms of all the members of the minority groups if the existence of the groups as such is not recognized and reflected in the constitutional institutions in which they are able to exercise their civil rights. Only by the participation of peoples as peoples, of groups as groups and of communities as communities, can the individual rights of minorities be preserved, and I have evidence to substantiate this statement. Until very recently the Western view of human rights was primarily inspired by 19th century liberal philosophy, a philosophy which at the time found expression, and still does today, in the statement that within a State there are only individuals with rights, community and ethnic context to which they belong are not a problem and the struggle for power among groups can simply be ignored. I say it can be ignored only with catastrophic consequences, which are apparent in most of the countries in which this philosophy was applied. A Bill of Rights, according to the American pattern, has to solve everything. Conflicts then disappear like mist when the sun rises. The hon. member, in formulating this motion of his, and some hon. members in their arguments in support of it, ignored the South African population structure as it exists. I do not wish to dwell on this for long, but let us take cognizance of the fact that there are 13 peoples, or groups, or communities, and all of them in turn are divided. In this way the Whites, the Coloureds, the Asians and also the Black peoples are divided. It is easy to speak the way the hon. member for Houghton does, as though there were mere X million people living in this country and that 70% of them are excluded from the legislative process. Sir, do you know what the reality is? The Black peoples alone are divided into approximate 265 tribes, and my question is: Is the existence of that number of tribes and groups not part of the conflict situation in this country? Did the discriminatory laws of this country identify those people or did they identify themselves?

Furthermore the hon. member ignores the fact that everywhere in the world where several groups or peoples exist within the same State, the individual has found a modus vivendi for his continued existence within the group of which he is a member. Group definition need not be a dirty word. On the contrary, group definition and group acceptance can be a powerful instrument for the protection of individual rights in a society such as ours. Group association is the instrument within which people realize their rights while—and I concede this—group identification is in most cases a source of conflict. There are few countries in the world which are comparable with South Africa as regards the magnitude of this particular problem. Said and Simmons make a significant statement on page 15 of their book, Ethnicity in an International Context, and I wish to recommend it to the hon. member. The statement which they make substantiates the statement I have just made. They write—

In connection with the Bill of Rights concept—

Does that not sound familiar to us, Sir? Does that not sound familiar, particularly on the continent on which we are living? I want to say one thing, and I am not saying it in a spirit of hostility. Although the hon. member and his party pay lip service to the concept of pluralism and are constantly bandying this concept about without defining it, their view of society, as expressed in the motion of the hon. member, is the same as that which applied in the Western countries in the 19th century.

The hon. member for Yeoville gave a good performance yesterday; a performance on which I wish to congratulate him. His speech was interspersed with references to groups and group rights. Surely he will concede that I am right on that score. The concepts of group rights and of groups, however, do not occur anywhere in his proposed Bill of Rights. Of course there is an explanation for this. The hon. member had to make allowances for the last speaker in the debate. You see, Mr. Speaker, there is an amendment on the Order Paper pertaining to this particular subject. I shall come back to it later. It contains the request that this provision in the proposed Preamble, which seeks self-determination for groups and minorities, should be omitted. Surely it is of no avail for the hon. member for Yeoville to pose before us here as the champion for group rights, for the rights of minorities on the one hand, while, when we give expression to it in the Preamble to the Constitution Bill, with the purpose of giving effect to that protection, he considers himself bound to support the amendment in terms of which it should be omitted.

What about the next motion? Surely mention is made there of …

I am still coming to that. I am now referring to the hon. member for Yeoville’s motion. If we were to accept the hon. member for Yeoville’s motion, and reject the next one, what does he do then? [Interjections.] Oh please, Mr. Speaker, hon. members should really not be childish now.

I allege that the arguments advanced by the hon. member did not support the philosophy implicit in his Bill of Rights. As far as I am concerned the hon. member can cast about as much as he likes—and I realize he has problems—but he and his party will not be able to escape from the heritage of the liberal philosophy with its exaggerated emphasis on individual rights and freedoms. If that philosophy is in fact accepted—and the hon. member for Houghton said earlier that she wanted it to be accepted—then the Constitution Bill, which is now before the House, can be scrapped because the acceptance of that philosophy means nothing but a system of “one man, one vote” in a unitary State.

Nonsense!

Absolute nonsense.

Mr. Speaker, the acceptance of the Bill of Rights as formulated by the hon. member for Yeoville means nothing but a system of “one man, one vote” in a unitary State. No court which has to apply that Bill of Rights will be able to arrive at any other conclusion. [Interjections.]

Mr. Speaker, could I put a question to the hon. the Minister?

No, I am not replying to any questions now. I have no time for that now. I am advancing an argument. [Interjections.]

You have lots of time. [Interjections.]

Order!

Mr. Speaker, owing to that philosophy, a philosophy which, I wish to contend, is a philosophy of the First World and of the 19th century, hon. members of the PFP fail to realize two things. I wish they would in fact realize these things because—and I must say today—I derive no satisfaction whatsoever from the quarrels we have with one another in this House. I derive no satisfaction from them at all.

In the first place hon. members of the PFP forget he following important point. It is that society, that the reality of population group formation should in the first place be a point of departure and should, in the second place, form the building blocks in the process of constitutional development and in the constitutional dispensation of the country. I shall argue this statement comprehensively. I do so gladly. As a result of this approach the official Opposition proposed on the Select Committee that in the Preamble to the Bill the object of respecting, furthering and protecting the self-determination of population groups and peoples should be omitted.

But surely it does not clash with this.

The hon. member says it does not clash with this. Very well. I accept that. If it does not clash with this, why should it then be omitted? If it does not clash, surely the two things are reconcilable. [Interjections.] If the two things do not clash, why should the one be omitted?

Your constitution does not further self-determination.

I shall gladly debate that statement too, Mr. Speaker.

I support self-determination.

Mr. Speaker, I now wish to put a question to the hon. member for Yeoville. Is the hon. member going to vote with the hon. member for Houghton when she moves the omission of those specific quoted portions?

We shall vote as a party. There is no division in our party. [Interjections.]

Mr. Speaker, I cannot recall having said that there was division in that party.

Only Harry talks about that.

Sir, it seems to me it is very close to the surface. [Interjections.] The hon. member for Yeoville has now assured me that there is unity in that party. It seems to me, however, that it is the unity of death. I want to ask the hon. member for Yeoville whether he agrees that the motion appears under the name of his party on the Order Paper. If the hon. member replies in the affirmative then I also want to put this following question to him: How is it possible then that he can go along with it when he used the following words in his speech motivating his instruction—

What was the hon. member saying here? He was saying that prosecution and oppression occurred against groups and that groups could be identified as national, racial, cultural or colour groups.

That is correct.

Well, if that is true, then I also want to ask him how he can support the hon. member for Houghton when she wants the targets of that prosecution and suppression, the group, to be protected while he does not want them to be protected.

She did not say that she did not want groups to be protected.

That is not what I am saying. [Interjections.] No, I said that the omission of the words she has moved should be omitted, words which are aimed at the protection and the self-determination of groups, is completely irreconcilable with the words of the hon. member for Yeoville which I have just quoted. [Interjections.] I am dealing with the hon. member for Yeoville and not with a political harlequin like the hon. member for Bryanston. I want to put this question to the hon. member for Yeoville: Is it not true that in spite of the view of human rights to which I have referred, a world-wide change has taken place and is taking place in respect of the view on this specific subject? Before he reacts to that, I want to tell him what I mean by it. I submit that people have begun to ask: Why does a Bill of Rights and controlling power by the courts not solved minority problems in Belgium, Cyprus, Lebanon, India, Sri Lanka, Zimbabwe—this is an excellent example—Kenya, Nigeria and Gambia? I shall tell the hon. member why not. One cannot solve those group problems with a Bill of Rights. I maintain—and the hon. member who is a student of politics will accept this statement of mine—that the focus in this specific connection is beginning to be concentrated to a greater extent on the cause of the problem, namely the constitutional recognition of the factual existence of peoples and groups alongside the individual and, in spite of what the hon. member for Houghton said, this is being done not in order to serve as a basis for discrimination, but for the very purpose of affording members of minority groups more effective protection.

Mr. Speaker, may I ask the hon. the Minister a question?

Allow me to finish this portion of my argument first.

This trend, this new focus which we as a party have been propagating for years now, is being recognized to an increasing extent in the circles of international experts. I just wish to quote two. The hon. member will recognize the following. W. Connor states, and the hon. member probably knows him—

What about De Crespigny?

I am not dealing with De Crespigny now. I quote further—

Surely the hon. member cannot argue against this; surely these are facts. Vernon van Dyke states—this is the second passage I wish to quote to the hon. member—

I want to ask him whether this is not precisely the point of departure which we are adopting. Neither the hon. member nor any hon. member of his party, individually, or collectively, has been able to succeed in convincing the House and the people who have to change the constitution and indicating to them how the rights of members of minorities can be protected if all nations and groups in this House are to be proportionally represented in this House on the basis of “one man one vote” and there has to be joint decision-making in the same institution.

Mr. Speaker, may I ask the hon. the Minister a question?

As soon as I have completed my argument. I say that minorities in Russia, Yugoslavia, India, Sri Lanka, Zimbabwe and Kenya can testify to this, and one would be able to make the list exhaustive if one wanted to.

The second point I want to make, is that there is not necessarily any connection or correlation between a Bill of Rights and the level of preservation of the rights of the subject. I should like to try to substantiate this with facts if I can. Some of the freest countries in the world do not have a judicially enforceable Bill of Rights. Australia does not have one. Belgium does not have one. The Netherlands does not have one. Switzerland does not have one. The United Kingdom does not have one.

But they have a common law.

They have a common law, but we, too, have a common law and as a lawyer the hon. member should know that. [Interjections.]

*On the other hand, the countries with the least freedom do have a Bill of Rights.

Like the USA, Canada…

Give me a chance. I am coming to those countries. I shall come to the USA, if the hon. member wishes. In Canada the Bill of Rights is not enforceable by the courts. The hon. member should go and see. He must get his facts straight. Of course it is not legally enforceable. I repeat: Some of the least free countries in the world have a formal Bill of Rights, or else reference is made in these countries to the rights of the citizens. The majority of Eastern Bloc countries have it. I do not know whether there is any link.

What do you mean by that, that you do not know whether there is any link?

With the Eastern Bloc countries?

Order! I just wish to point out to hon. members that the hon. the Minister’s time is limited to one hour, whereas he has to reply to a debate which has lasted a day and a half. I call upon hon. members to afford him the opportunity to do so. The hon. the Minister may proceed.

Among the 128 or so states the constitutions of which mention human rights and political and civil rights, there are no fewer than 24 African States. In hardly any of these States is the real situation as regards protection comparable in any way—I am still coming to the hon. member’s interjection—with the Bill of Rights in America or West Germany, and in any event the position comes nowhere near that in South Africa. I challenge the hon. member to tell me that in those 24 African States that have a Bill of Rights, people’s rights are better protected than in South Africa itself.

What happened in Bophuthatswana?

The hon. member asks what happened in Bophuthatswana, but he denies the principle that the State should be independent. Now, however, he is pointing out its success. What kind of political argument are we conducting in this House now?

Let me proceed. There are 38 countries in the world, the constitutions of which refer to the protection of minority rights. Three of them are African constitutions, viz. those of Libya, Chad and Senegal. What am I trying to infer from this? I contend that this state of affairs indicates unambiguously that a Bill of Rights is no sine qua non for the effective support and protection of the citizens.

We agree with that.

Very well, that is fine. Then, however, the hon. member must also agree that it is wrong to argue on the basis that if we accept a Bill of Rights, we shall gain all the benefits to which the hon. member referred.

He did not say that. One can educate people.

I want to say in all seriousness that the success of any system and the success we may achieve in this country—I hope the hon. members realize how limited the options are—will, in the final instance, depend on the preparedness and determination of governments and of people in the various States and also in our own country to respect and protect to the best of their ability the rights of the citizens in their respective circumstances. The hon. the Leader of the Opposition can now ask his question, if he wishes.

Mr. Speaker, I find the point that the hon. the Minister made, very stimulating. To avoid misunderstanding I want to ask him whether it is not perhaps true that whereas a law may concern a category or group of persons, when it is implemented it is the individual who experiences the effect of that act. Here I have in mind, for example, influx control or the Group Areas Act. In the same way the converse of the argument applies to a Bill of Rights. Although it establishes individual rights, it is true that in its implementation by a court, groups may be given the benefit of it. This is a point we have made repeatedly and that the hon. the Minister apparently does not wish to concede.

That is a statement. Sir, and not a question.

But I am asking whether that is not so.

All I am trying to say is that if one seeks to protect the rights of the individual in a society such as this one, those rights must be protected within the group context. One cannot single out individuals from the group context and then protect the individual in that regard. [Interjections.] Then I want to ask the hon. the Leader of the Opposition, in all fairness, where reference is made in the hon. member’s instruction to the protection of individual rights in the group context?

But he explained that.

That is not the point he explained. I am speaking about what is stated there. That is exactly what my objection was a moment ago and the hon. the Leader of the Opposition was present at the time. The argument of the hon. member for Yeoville did not support the wording of his instruction. Do hon. members know whose arguments did support the wording? They were those of the hon. member for Pine-lands and the hon. member for Walmer. Their approach was not the approach of the hon. the Leader of the Opposition. I do not say this because I want to imply something thereby.

Why do you not just move an amendment?

I need not move an amendment. My amendment appears in the Constitution Bill that is aimed at protecting group rights. [Interjections.]

I come to the third statement I want to make. The fact that the Government did not accept the proposal as contained in the instruction does not mean that we are not in favour of and wish to support the protection of rights. I think it is necessary to say that the Government is prepared to commit itself to the maintenance and preservation of the rights and freedoms of all. In the Constitution Bill that was accepted at Second Reading—it was spelt out as a national goal in so many words. In an amendment which hon. members supported, the Select Committee stated this goal even more clearly, as follows—

This formulation is comprehensive because a deliberate effort was made not to tabulate an exhaustive list of rights and freedoms. Nevertheless, apart from this general statement and without detracting from the generality thereof, the following is also stated in the Preamble as national goals—

I concede that this Preamble cannot be adjudicated by the courts. My standpoint is that the casis controlis on the legislator is the people who suffer or who are benefited under his laws.

I recognize that it represents an ideal, something which is still to be achieved and which, one hopes—I wish to state this clearly, too—can be pursued more effectively, although not perfectly, within the structures established by the Constitution Bill. Whether or not we are satisfied with the adequacy of the proposal, no one can argue, in spite of all his objections, that if this new dispensation is established in this country, we shall not be able to achieve these national goals more effectively than under the present dispensation. More people will participate in the legislative and executive processes to make it possible. The fact that this side of the House does not support the instruction of the hon. member must not be interpreted to mean that the NP and the Government attach no value to rights and freedoms. It is the basic function of any government to reconcile conflicting interests in a community. Make no mistake; the existence as a group represents one of the most important factors and conflict situations in the country. Among the interests we must reconcile, freedoms and rights are of the utmost importance. The hon. member for Yeoville is not present at the moment—I do not reproach him for that—but he referred by implication to the Afrikaner struggle. By doing so he affords me the opportunity to speak about the role of the Afrikaner in regard to the upholding of rights. I should like to avail myself of the opportunity his remark provides, because I am an Afrikaner.

The first statement I want to make is that the upholding of rights is not a novelty that the Afrikaner and the NP, learned only recently from liberals. On the contrary, it is one of the main themes of his history, and if he were to bring discredit upon it today, not in a utopian world that does not exist, but in the reality we are faced with, then the Afrikaner would be untrue to his own existence and would forfeit his survival. The long struggle for survival that the Afrikaner people has waged since the hour of its birth—I do not wish to score points off anyone, but merely wish to put this idea across—has never been an issue of brutal and barbaric self-preservation or of a morally undisciplined emotionalism. I believe that it was indeed a struggle in the name of justice for the sake of achieving justice. It was not perfect, but this was an ultimate goal. No hon. member can deny that.

And the removal of Coloureds from the common voters’ roll?

I shall reply to the hon. member on that. I do not wish to quarrel with him. However, there was a time when he was an exponent of a separate voters’ roll for Coloureds, which implied the removal of the Coloureds from the common voters’ roll. Now he comes here and preaches sanctimoniously at me. No, really, he must not come up with such nonsense.

As regards the upholding of people’s rights, the Afrikaner has been a moral pioneer. He has been a prominent champion of the principle of live and let live as far as the relationships between peoples are concerned. Is it not true that the Afrikaner roused the conscience of the world against violent imperialism and greedy colonialism? People must not come and tell me that the winds of change in this regard blew across Africa after the Second World War. That is something that began a long time before that. It was the Afrikaner who lead the protest of subject peoples against the aggression, exploitation and injustice that was committed in the name of European civilization and that is recognized today—albeit sometimes reluctantly—as part of the scandal of that civilization.

Now you are blaming us for everything.

But the hon. member is not English-speaking. [Interjections.]

Therefore from the time of its foundation the NP—and I do not apologize for this—in which the Afrikaner people’s movement found expression early in the twentieth century, took up the struggle for justice too in its programme of principles. Let me admit here and now that we have not achieved absolute success, within the limitation of society, in achieving this elevated goal. If this constitutional plan were to be implemented it would represent the first time in history that Coloureds and Asians were represented in the Parliament of the country. This did not happen during the period in office of any predecessor of this Government. Nor did it happen under the leadership of any of the parties which were formerly the home of the hon. member for Houghton.

That is not correct. Up until the time of Union they could sit in Parliament.

I am talking about after Union. I am not talking about the period before Union. [Interjections.]

*Please just let me finish. We can either debate the matter with one another here or we can shout one another down across the floor of this House.

Since the Second World War, successive South African Governments have been the target of every human rights campaign imaginable at virtually all levels of the international society.

Why?

Whether this has been justified or not is not at issue now. We could debate that. However, the fact is that we, together with a few other States—and I here just want to identify one of these, viz. Israel—are in a special position from which to make a true evaluation of the flagrant abuse of the term “human rights”, and no one can take it amiss of us if we get cynical about the sources of these abuses and the objectives of people who preach them. Nevertheless, within the bounds of the limitations, emotional and otherwise, of society, the Government wishes to respect and protect the human dignity, the rights and the freedoms of all the inhabitants of the Republic. But precisely because we do not wish to stoop to the contemptible level of participating in a discussion of the concept of human rights purely for political gain, it is necessary that I should state on behalf of the Government what we understand by that. Hon. members are aware that there are communist Bills of Rights; there are socialist Bill of Rights; there are democratic Bills of Rights—indeed, there is a wide spectrum of Bills of Rights, each with its own meaning, that people want to apply in other countries. We want to associate ourselves with the central idea of the Western approach in this regard, viz. that the citizen and the individual, as bearer of the image of God, has a dignity which must be respected, and therefore he must never be degraded to the status of a mere object of the exercise of power, and that as the weaker party in the relationship between State and citizen, he should be deliberately protected. I think that everyone in this House and in the country ought to be able to associate themselves with this in spite of the considerable variety of peoples and groups to which we belong.

Secondly, the Government believes that in multinational societies these rights can best be protected by according recognition to the existence of those peoples and groups of which the individuals are members.

Then, finally: Why are we not in favour of the hon. member’s proposal? Why are we not in favour of a comprehensive and enforceable Bill of Rights, as proposed? A part of the argument will have to stand over until we consider the motion of the hon. member for Sandton. In the meantime, we are of the opinion that an enforceable Bill of Rights is not the ideal instrument whereby to regulate relations in South Africa. The American Bill of Rights and the testing power that the American Supreme Court has in respect of all Government action in terms of the Bill of Rights have certainly not, with a few exceptions—and these exceptions were certain West European States—been a good export product, not even to Canada, although the hon. member spoke about that yesterday. The Canadian “Charter of Rights and Freedoms” is not enforceable as the American Bill of Rights is, and in essence there is not much difference between the Canadian efforts and the Preamble to our own Constitution Bill.

No, that is wrong.

Very well, then. We could debate that at a later stage.

The only real example the hon. member for Yeoville was able to quote was that of the USA. After the Second World War hardly a single State became independent without incorporating a Bill of Rights in its constitution. However, what has become of these? What is the situation with regard to a Bill of Rights in plural societies and in Africa? For the most part they have not worked. The hon. member will know that, of course. They have not worked. Why not? The hon. member for Yeoville need not concede that point, of course. He might as well go ahead and contend that my standpoint is inspired by party politics. Therefore I might as well quote to him the words of a person who lives in South Africa but who, as far as I know, is not a member of the NP.

In a very illuminating lecture entitled “The Social Foundations of Human Rights: The Problem of Developing and Plural Societies”, published in Human Rights: The Cape Town Conference, 1979—the hon. member for Pinelands will remember it—Prof. Lawrence Schlemmer analyses the socio-economic circumstances in which conceptions of human rights arose in the West, and in the context of which they still exist. On the basis of his analysis he then tries to determine to what extent the same circumstances prevail in Africa and in Southern Africa. With great respect, Mr. Speaker, this was a fruitful exercise on his part. His conclusion was that they did not exist in Africa, and moreover, that they probably will not develop in the short or the medium term. I quote him as follows—

In South Africa, too, according to Prof. Schlemmer, these circumstances do not exist at present. Although one does not necessarily agree with the details of his analysis nor with his proposals to improve the situation, it is striking that he does not propose that a Bill of Rights and a testing power for the courts ought to be introduced without further ado.

Are you suggesting he is against it?

Really, Mr. Speaker! Let me rather proceed with my argument. Even if one accepts that the majority of the inhabitants of South Africa strive to maintain Western norms and standards, it is a simple fact—although we also differ from the other States in Africa—that more than anything else we are a developing state with probably the most complex population structure in the world. Simplistic Western solutions, as worded in the Instruction by the hon. member for Yeoville, are simply not applicable. In my opinion it would also be irresponsible, and fortunately most people fully realize this.

What about South West Africa?

I am prepared to conduct a debate on South West Africa with the hon. member. I just wish to ask the hon. member this: What does the situation look like there?

But they have a Bill of Rights there which you supported. Your Government supported it.

An important aspect of the hon. member’s proposal entails vesting in the courts the power—and with this I shall conclude—to declare executive actions and laws null and avoid on the basis that they clash with the Bill of Rights. The Government has great confidence in the integrity and independence of the South African legal system and judiciary. Once again, however, the hon. member and his party have not thought through all the implications of their proposals. A testing power in regard to the contents of legislation implies that the courts will participate in a typically legislative function and in certain cases will be the final legislator. The hon. member must realize full well that the moment the court obtains a final say its composition and its decision-making procedures will become of cardinal importance. One will then—as I see it—have a repetition of the problems within the courts that we struggle with everyday at the legislative and executive levels. This fact has profound implications for the nature, composition and functions of the courts which I shall elaborate on when we discuss the motion of the hon. member for Sandton.

To conclude I just wish to make these two remarks. The insertion of certain national goals in the preamble arises out of a speech made by the hon. the Prime Minister at the Federal Congress of the NP in Bloemfontein last year when he stated that there were certain basic values and standards that we all believed in. In the preamble several of these values are stated which, in our opinion, can be supported and identified with by all loyal South Africans and which we all strive to achieve. The hon. member for Yeoville and his party may be cynical about this statement of intent, but this side of the House is in earnest about our commitment to pursuing these goals.

There is no-one among us who can predict what the future holds, but we can all learn from the lessons of history. There are two lessons we can learn from it. For a society such as ours neither domination nor abdication is an answer to our problem.

Question put,

Mr. Speaker, I move the instruction printed in my name on the Order Paper, as follows—

1. (1) act as the final authority for interpreting and enforcing the Constitution and its conventions;
2. (2) pronounce upon the validity of certain Presidential decisions; and
3. (3) protect any person, group or community whose rights as set out in the Constitution are infringed.

Sir, we live in a country consisting of very many different cultural, ethnic and racial components. Ours is a society divided as few others are in this world. The constitution we are presently considering evidences an awareness of that fact. The Bill before us clearly contemplates future divisions and conflicts arising between the three racial groups included in the dispensation—namely the White, the Coloured and the Indian communities—and participating within the framework of three separate Houses of Parliament. Prof. John Dugard, in his written evidence submitted to the Select Committee which has just completed its work, said—

Furthermore, the new legislative process and form of executive government is not only complicated, but it strikes out in completely new directions, the full implications of which directions are most difficult to assess at this moment. To some limited extent it involves a division of power between different groups.

A philosophically important though not legally enforceable provision contained in the draft preamble reads as follows—

Since the notorious constitutional crisis of the 1950s, whereafter the right to test legislation was removed from the courts resultant upon the Appellate Division’s decisions in the Harris cases, Parliament has in fact reigned supreme and the sovereignty of Parliament has been complete. But in terms of what is before us, Parliament will no longer be sovereign. Sovereignty becomes a grey concept, manifesting itself largely in the decisions of the President who is almost all-powerful, in the President’s Council … and, only lastly, in the hands of representatives elected by the people. At this juncture, taking that into account, I have this question to ask of the hon. the Minister: What is the point of upholding the independence of the judiciary in a society in which the judiciary is excluded from adjudicating upon and implementing vital aspects of the law? What is the point of upholding the independence of the judiciary in that circumstance? The very reason for maintaining an independent judiciary is so that when considering judgments which may affect the legislature or the executive, the court stands at arm’s length from and out of reach of the executive. That is as it should be. But in a country where the executive is determined to have the final say regardless of the law or equities, but which at the same time wishes to maintain for world consumption the facade of the rule of law and judicial review, there are two ways of going about achieving this.

The first way is to allow the courts the testing right and the full jurisdiction to deal with executive decisions, but at the same time to destroy the independence of the Bench by packing it with political cronies thus ensuring favourable verdicts. That is the first way one goes about doing this. This was the ploy used by the NP Government in the 1950s and it caused much bitterness.

There is another way of ensuring that your decisions as an executive are carried out, namely to proclaim and even to maintain the independence of the Bench but, in order to ensure that governmental actions are not interfered with, by simultaneously stripping that Bench of its testing rights. This is what has happened in South Africa since 1955. That is what is contemplated now. The result is the same.

I ask again: What is the point of upholding the quality of all under the law when presidential decisions, crucial to the very fabric of our society, are held to be above the law? If the term “equality of all under the law” is to mean anything at all, then the President and his President’s Council must also be made subject to the law.

But reverting to my original statement concerning the contemplation of in-built conflict in this proposed constitution which we are considering at the moment, it is surely unwise, to put it mildly, to put the regulation of that possible conflict solely in the hands of a sovereign President, historically bound as he will be to a single political party, to a single political philosophy, to an inherent loyalty to the power group which put him there. Dugard, in his evidence to the Select Committee, which I have already mentioned, said—

I believe that it would be dangerous to leave the protection of the basic structure of the constitution in the hands of those directly involved in the political process. I say this for two main reasons. Firstly, there is a strong likelihood that the powers involved could be used to protect or to further sectional and narrow interests at the expense of consensual government, at the expense of the broader interests of the nation. Secondly, even if this does hot happen, decisions by such parties in these circumstances will enjoy little confidence among those involved in the political process, certainly among representatives of minority parties. These decisions will also enjoy little legitimacy in the eyes of the new electorate. Legitimacy, or, to put it in other terms, the acceptability of such decisions, is vital to the success of any new order, and to this new order in particular. Whichever way it is reasoned, one comes back to the proposition of allowing an impartial court a role of consequence in the unfolding constitutional development of our country.

It was a present judge of appeal, Mr. Justice Diemont, when addressing graduates at the University of Cape Town on 9 December 1982, only a few months ago, who said—

That was said by a present judge of appeal. It must be obvious that the time to reverse that process is now, the moment that we are making a new constitution. I submit that a special constitutional court would be a far better conflict regulator than either the President or the President’s Council, particularly as it would provide an independent and objective, a politically neutral arbiter to police the system. It is also less likely to suffer the disadvantages I mentioned, namely sectional manipulation or a lack of legitimacy. Mr. Justice Diemont said the following in this regard—

The proposition I make must be seen in the light of the fact that the plea for the inclusion of a Bill of Rights in the constitution has lamentably been denied. Furthermore, in the constitution itself, except for the Preamble, the rights of individuals are in fact not mentioned at all. Ours is not such a constitution, as it was presently written, where individual rights are adumbrated and protected. In making a plea for a constitutional court it must be understood that the function of such a court will not per se be to test laws against basic rights but rather to protect the framework of the new constitutional dispensation itself. As a result the court will primarily be concerned with matters which could at a stretch be termed procedural, questions relating to the adherence of procedures, and is therefore less likely to become directly embroiled in disputes over the merits of a particular policy or a piece of legislation. Such a court will be involved in political disputes, but as a protector of the system rather than as a protagonist of any particular point of view. Flowing from this it is entirely appropriate that the role of guardian be given to a body consisting of judges steeped in the law. Apart from questions of impartiality and independence, the issues are likely to involve more often than not the interpretation of fairly specific rules of law, a matter on which a court can certainly claim special expertise.

I should like succinctly to state four further good reasons for not summarily dismissing when I am proposing. Firstly, the judiciary could play an important role as educator of both the public and those directly involved in the political process by enforcing observance and working out the details of the structure of the constitution and in particular by seeking to give effect to the consensual basis on which it purports to rest, in other words, ensuring that the procedures relating to obtaining consensus are in fact adhered to.

Secondly, as I have already said, this Bill marks a radical departure from the existing system and will raise problems which have never before been confronted in South African constitutional law or in intergroup relations. It is impossible to provide for all these problems in advance and they would best be dealt with on a case by case basis within the general framework provided by a proposed constitution. I believe that a court would be the best body to do this.

Thirdly, in a deeply divided society such as our Republic, courts of law may still constitute an institution of government in which all retain at least some degree of trust. A court would be the most likely body to attract broad support for its decisions.

Fourthly and finally, the creation of a constitutional court would represent another mechanism for the diffusion of political power in a system where the concentration of power in any body carries with it the real danger of abuse for sectional interest.

I should like to deal with three further matters of overriding principle. The first is, why a special centralized constitutional court and not just the ordinary courts as they presently function? Firstly, because I believe that if there are objections to introducing our courts into the constitution, they are, in the first instance, that this would bring the courts into political controversy and, secondly, that the South African courts are not properly constituted for a role of this kind. These problems, however, could be overcome by the creation of a special constitutional court. In this respect, rather like the United States Supreme Court, I believe that the Appellate Division of the Supreme Court of South Africa is the best, the most qualified and the most independent court to act in this capacity. The Austrian constitution, which was re-enacted in 1945, provides for this type of court. This model was followed in 1948 by Italy and in 1949 by West Germany and it has operated in those countries with success. In other words, this is not an idea unique in the Western World. It is a tried and tested method of balancing legislative and executive power.

Yes, in homogeneous States.

Taking that interjection into consideration and if we could just look at it for a moment, I believe that in a country which is not homogeneous, in a country where there are deep divisions, in a country where overwhelming power is held in the hands of one group, an impartial, an independent and a trusted court can do far more to diffuse the conflicts of that society that an executive party political president could ever do. I say that in a non-homogeneous society a constitutional court becomes more relevant than in many other countries in the world.

Nonsense!

It is sound common sense. [Interjections.]

I say this is not a new idea, Mr. Speaker. It is a tried and tested method of balancing legislative and executive power with the needs and aspirations of a multifaceted society. A specialist court, above politics, independent of the executive, neutral in its outlook, truly warrants serious consideration.

Let us for a moment look at this concept in the context of but one aspect of the Bill, and in doing so I lean heavily on the writings of Prof. Dugard of the University of the Witwatersrand. I want to refer to the President’s Council. At the moment the President’s Council is one of the deadlock braking mechanisms to be utilized within the framework of this constitution. It is a body representing, in the first instance, only the majority parties of the three Houses. More important and more realistically, however, it is a body controlled by the White majority NP. That is what it is. If one sees the proposed new President’s Council in its true light, it is really, by virtue of its character, dominated as it is by nominations, no more than an extension of the State President himself. That is what the President’s Council is.

In short, therefore, in today’s politics it is a forum firmly controlled by the NP, and if anyone foolishly believes that the President’s Council will resolve any deadlocks other than in accordance with the wishes of the NP State President and the NP, that, I believe, is a pipe dream of gargantuan proportions.

A constitutional court consisting of experts on public law would be a far better conflict regulator than the President’s Council as presently envisaged could ever be. Such a court would have a number of advantages which the President’s Council lacks. Firstly it would carry much greater authority, as it would consist of jurists removed from the dust of political conflict. Secondly it would publish the reasons for its decisions, and this would give the different sections of the community greater confidence in its functions. Thirdly it would be more economical, firstly because its membership would be greatly reduced, and far less than that of the President’s Council, and, secondly, because its functions could easily be exercised on a part-time basis.

Surely, Mr. Speaker, we have seen enough—in the past few years of South Africa’s history—of bodies created for political expediency, bodies which are no more than luxurious dumping grounds for played-out politicians and slow-thinking political hacks. [Interjections.] Let us while we have the opportunity, create bodies in this new constitution which will work for their money, and which will command credibility, acceptability and legitimacy.

There exist two popularly mooted arguments against the case for judicial review. The first one relates to the possible defeat of the will of the people and their representatives. Cowen, in his work The Courts and the Constitution states it in the following manner, and I quote—

I may say that this argument cannot apply in South Africa. It cannot apply in South Africa because there is regrettably no Bill of Rights. The role of the constitutional court will not be in the main to enforce its interpretation of individual rights on the legislature or the executive. Its role will largely be to ensure that the terms of the constitution have been adhered to and that laws made and decisions taken are made and taken in accordance with those terms.

Secondly, it can be argued that there is no good reason—I think the hon. the Minister mentioned this point in his reply to the debate on the previous instruction as a very strong point in his favour—why a court should be regarded as a better guardian of liberty or as a better interpreter of the constitution than either the legislature or the executive. However, that is to deny that the constitution is in fact a legal document. Willis in his book on the constitutional law of Indiana refuted that argument without difficulty. He said—

There is also the argument that judicial review of parliamentary or executive enactments is a concept foreign to South Africa and to South African law. That is simply not true. It is a concept long established in our land. We need only look at recent history to find examples that can be quoted at length. In 1952, Edward Harris successfully challenged Parliament on two separate occasions. The first occasion was when Parliament, using a simple majority, abolished an entrenched clause in the constitution that safeguarded the franchise rights of the Coloured community of South Africa. Mr. Harris went to court to dispute this enactment and the court held that the Separate Representation of Voters Act was invalid, and the Coloureds remained on the voters’ roll.

But that still happens now.

Mr. Justice Diemont describes the subsequent developments as follows.

But you are refuting your own argument.

I am not refuting my own argument. I am saying that there is a clause in the Constitution Bill that denies the courts the right to pronounce upon the validity of laws.

May I ask a question? Is the hon. member for Sandton arguing that there is a clause in the Constitutional Bill that will reduce the functions of the court in relation to the interpretation for review on actions so that once the Bill has been accepted, the powers of the court will be less than they were in the Harris case?

Yes, that is quite correct. That is what I am saying. The reason why I say this is because after the constitutional crisis in the mid-fifties there was a law passed by Parliament that amended section 59 of the constitution and introduced into the constitution in 1955 the concept that the courts could not interfere in regard to the validity of Acts of Parliament.

I am talking about this Bill.

I am saying that I disagree with that. I am saying that it is not a foreign concept to introduce the right of the courts to adjudicate upon laws and I say it is not a foreign concept in South Africa. I am quoting examples of where it has occurred in this country with fruit for democracy in the past.

Mr. Justice Diemont only a few months ago said the following—

Here I detect an element of sarcasm—

This evidenced a sad period in our constitutional development, but historians today and even many people in politics on all sides of the House acknowledge the valuable role played by the Appellate Division in the 1950s in protecting the rights of the community in the face of the attempted violation of the constitution. That role—and that is my argument—should be made possible of fulfilment in this constitution now.

There are more recent examples of the courts’ intervention which I shall merely briefly mention. In Marwane’s case in 1982 the accused was convicted by the Bophuthatswana High Court under the Terrorism Act and sentenced, I believe, to 15 years’ imprisonment. On appeal our Appellate Division, in a case in which 11 judges sat, held that the Terrorism Act was in conflict with the Bophuthatswana constitution and therefore the Terrorism Act in so far as that State was concerned was invalid.

Because of the Bill of Rights.

Yes, because of the Bill of Rights. Therefore the conviction was set aside.

This power, strangely exercisable by our own Appellate Division in respect of a foreign State which is a brainchild, the creation of this country, cannot be exercised in South Africa within our own jurisdiction to the benefit of our own citizens.

I can give another example. The Ingwavuma case must still be very fresh in the memory of most and particularly fresh in the memories of the members of the Cabinet as also the Rikhoto judgment. These are two further and laudable examples of an independent court acting as a brake on the misuse of executive power.

To sum up: We are in constitutional terms entering water as yet uncharted. The new dispensation is most complex and as yet untried. It brings together for the first time ever in the legislative process communities markedly diverse in their make-up and in the tensions and in the pressures prevailing within those communities. The new-style President is to be vested with extensive and far-reaching powers. There is as yet no clarity or body precedent defining the application of the conventions of the constitution. The decisions of the President, vitally affecting all of us in this country, will be made without the benefit of tried and tested consultative organs and procedures. Therein lies ample scope for the creation of yet further conflict. Finally, and worst of all, there is to be no Bill of Rights protecting political parties, groups and individuals at all. Against that background a constitutional court, as envisaged in the Instruction I have moved, assumes crucial importance if the people of our country are to enjoy the freedoms they deserve.

Mr. Speaker, the hon. member for Sandton conceded that we lived in a heterogeneous society—he referred to a “divided society”—but he did not go on to tell us what demands that heterogeneous society made on our Government institutions. He does not tell us that those specific circumstances, to which I shall refer again later, require strong and stable Government institutions. He does not tell us that if this motion were to be passed and a constitutional court established, this would undoubtedly weaken those institutions, that it would plunge the legislative authority into absolute uncertainty, that it would promote instability and that, in the long run, it would cause apprehension, prove a danger to social order and could, in turn, mean that it would no longer be possible to protect the rights he wants protected. The hon. member demands independence for this constitutional court, but bearing in mind that the constitutional courts in the USA are not independent, he has not told us what proof he could furnish that court would, in fact, be independent and could be kept independent. He went on the say that the constitutional court would give legality to the constitution, but this could only take place if that court were independent and were not seen as merely another arm of the Government. He did not tell us how to solve that problem. Until these problems can be solved, this proposal cannot be considered seriously.

The hon. member’s motion asks for a constitutional court that would be able to test the laws of the legislative authority and declare them invalid, not only as regards procedural aspects and procedural shortcomings, but also as regards the merits. The instruction goes on to ask that this court be independent. It is therefore asking that the political legislative body be subject to the testing right of a non-political judicial body.

I want to agree at once that our judiciary has to be independent. An independent judiciary is one of the sturdy pillars of our State system. It is a pillar we can be extremely proud of. It is a tradition which does not requires our judges to be appointed on the basis of political convictions. This is a tradition which requires our judges to remain outside politics. This is a tradition which requires our Supreme Court to be above the political toil and strife. Because it is not involved in this struggle it gains dignity and respect in the eyes of the people of South Africa.

And also a degree of irrelevance. [Interjections.]

It is thus not seen as a political instrument, an instrument to be used in the game of politics, but rather as an independent and unimpeachable instrument. The traditional role of our Supreme Court is to arrive at factual judgements, to pass judgment in accordance with legal principles which have been recognized throughout the years and not to question the laws and the legislative authority. If this proposal were to be implemented, it would mean the end of the independent judiciary in South Africa. There cannot be the slightest doubt about that. Certain arguments in favour of a constitutional court could be raised, but about one thing there can be no doubt, namely that if this were to be introduced it would mean the end of the independent judiciary as we know it in South Africa. We have proof to back this up. We need only consider the role of the constitutional court in the USA. I want to refer to what Peltason says on page 28 of his book Understanding the Constitution. He refers to the role of the federal Supreme Court in America and then says—

The administration of justice has therefore become as important a Government instrument as legislation and the executive. The result is that the judiciary has been completely drawn into the political struggle. On page 33 of his book he says the following—

The important point is that the judiciary is not politically standing on the sidelines, being directly involved in politics. That is unavoidable. What would this mean? This would inevitably mean that the judges appointed to the judiciary would be appointed by the executive on the basis of their political convictions. This would be the inevitable consequence. This is not an argument which has been drawn out of thin air; this is a reflection of the actual state of affairs. All we need do is simply to consider what happened in America. When reference is made to judges appointed by American Presidents, specific mention is made of those judges’ political convictions. Here let me refer to the book The American Constitution and the Judicial Process by Mendelson. He mentions all the judges appointed since the USA gained independence. President Eisenhower appointed five judges, four of whom were Republicans. President Kennedy appointed two Democrats.

How many Broederbonders have you appointed?

Is Mr. Justice Didcott a Broederbonder? President Johnson appointed two Democrats, while President Nixon appointed three Republicans and one Deocrat. Do hon. members want that to happen here? When judges are appointed, do they want mention to be made of the political party they belong to? That would be unavoidable if this instruction were to be accepted. Why should it happen in America and not here? There is actually more reason for it to happen here than in America, because owing to the heterogeneous composition of our population we have to give higher priority to stability. We would therefore have to give higher priority to our legislative authority and the constitutional courts being in step. This could simply mean the end of our independent judiciary, the judiciary being seen as a political arm of the Government. Our administration of justice would thereby be so deeply embroiled in the political struggle as to become a contentious issue. This is something we do not want because it would simply lead to the man in the street having diminished respect for our judiciary.

I need only refer to what has happened in America, to the Brown decisions and the Swan decision which led to the “bussing” episode. This led to communities rebelling against this. It led to prominent persons rebelling against it, so much so that a governor mobilized his home-guard to resist the implementation of one of those decisions. There was also the Little Rock episode where President Eisenhower simply had to call in his federal troops to enforce the decision. What was the result of all this? It led to bloodshed, violence and loss of life.

A constitutional court on the one hand and an independent judiciary on the other are simply not compatible. It must be one or the other.

However, there are other disadvantages. If a constitutional court were to be established in this country, recognized legal principles would simply be thrown overboard. The system would be dominated by “equity”. Roman Dutch principles would be watered down. Everything would simply be subject to political expediency. With all due respect, any legal expert who studied the decisions of the American federal Supreme Court would agree that those decisions are not legal decisions as we know them, but rather political decisions. They were policy decisions.

I also want to suggest that if we were to introduce a constitutional court in this country, it would create tremendous uncertainty. All legislation would be subject to judicial sanction to validate it. If there is one thing on which all parties in this House should agree, it is that we have an extremely complex situation in South Africa. Racially we have an extremely heterogeneous population. Ethnically we have an extremely heterogeneous population. We have new States established on our borders after strife and civil war. There is very little stability in those States. We also have new States in our own territory which have only gained independence very recently and still have to find their feet. We are engaged in extremely sensitive constitutional development. There is a tremendously concerted terrorist onslaught against us. We have a difficult and burgeoning labour situation. All these factors require a strong central authority. They require a strong legislative authority. One cannot simply allow the legislative authority to be completely emasculated by a constitutional judiciary.

If there had been examples worth following as far as a constitutional court was concerned, we might have been able to advance a good argument in favour of it. The hon. member for Sandton had the opportunity to give us some good examples in this connection, but he did not do so. Let us consider the situation in the USA and the many judgments in that country which certainly do not commend that system. I have already referred to the bussing episode in America which even led to bloodshed. What happened in the schools? If one visits the capital nowadays and looks around their council chambers, one sees the inscription “In God We Trust”. But what did their federal Supreme Court do? It simply declared the voluntary practise of religion in schools to be unconstitutional. State legislation in connection with abortion was simply swept aside. The law relating to fetuses was simply swept aside. In the Bakke case we had the example of a medical student who wanted to study medicine, but was simply thrown out by a lower court owing to a quota system. There are many such examples. Such things can very easily happen with a constitutional court, because that constitutional court is not responsible to the people. Whereas this Government is continually subject to the will of the people and has to fight elections to gain a mandate, if that court were to be introduced, it would be a Government body. As such it would be able to test Government action, but would simply not be responsible to the people. If the functions of the legislative authority and those of the judiciary are not properly separated, if they run together, this would definitely be to the detriment of both. The legislative authority would be adversely affected because it would be emasculated and would not have the power to implement legislation properly and to govern the country, and the judiciary because it would be embroiled in politics and would no longer retain its dignity and respect in the eyes of the population. For that reason I cannot agree with this notice of instruction.

Mr. Speaker, the hon. member Mr. Schutte made out a good case for the fact that there ought not to be a constitutional court and for the fact that our courts ought not to be caught up in the political rapids. All those fine arguments he advanced would have been completely acceptable were it not for clause 18 of the Constitution Bill. Clause 18 is actually the most important problem the CP is wrestling with, particularly clause 18(2), which reads—

Under normal circumstances, such a decision would be an administrative-judicial decision, and there have been many political problems in regard to administrative-judicial decisions in the past. During the past year there have been numerous political problems that the Government have had to deal with as a result of administrative-judicial decisions. There have, for example, been the Rikhoto, Ingwavuma and Kangwane Cases and the resulting appeals. The NP has been caused enough political embarrassment as a consequence of administrative-judicial decisions. In other words, I do not think that what the hon. member means is that the courts should have no right to pass judgment whatsoever. I do, however, think that this is what will happen in terms of clause 18.

I now briefly want to deal with the points the hon. member for Sandton raised.

†I think the hon. member also made out a good case for the deletion of clause 18, but not for the bringing into being of a constitutional court. We in the CP believe that the existing courts, having inherent common law jurisdiction, can adequately deal with problems of the kind as foreseen in terms of clause 18.

We also cannot agree that a constitutional court should have the final conflict-regulating right and be brought into the political scrum, as indicated by the hon. member Mr. Schutte.

*As I have said, this whole instruction must be read against the background of clause 18(1) and (2) of the Constitution Bill. To a certain extent this is also interwoven with the provisions in clause 34(2). Clause 18(1) merely grants the courts the right to test whether the provisions of clause 17(2) have been complied with. Clause 17(2) provides that before the President issues a certificate, he shall consult the Speaker of Parliament and the Chairmen of the respective Houses in such manner as he deems fit. How he does so, if left to his own discretion. In legal terminology no meaning whatever attaches to this. He can telephone them, consult them personally or invite them to furnish comment on any of his decisions. Subsequently, however, he is at liberty to ignore them completely, as long as he has, by way of this gesture, indicated that he has consulted those three gentlemen. The only testing right the courts have involves whether he has consulted these gentlemen or not. Mr. Speaker is outside politics. He is an unbiased and objective judge. When it comes to the Council of Minister, this is not the case. The Chairman of the Council of Ministers is, I believe, intimately and subjectively involved. This draws Mr. Speaker into the field of battle and is in any event unacceptable.

The Chairman of the Council of Ministers will, in passing judgment, decide on what is politically most acceptable to his party, and that is what this so-called consultation is worth. And it is in this regard that the courts only have a testing right; this does not even apply to a certificate relating to the amendment of a Bill which has been amended in terms of the consultation.

That is why the CP is opposed, in particular, to the provisions contained in clause 18. If we were able to do so, we would have moved an amendment to clause 18. When clause 18 comes up for discussion we shall, in any case, be moving an amendment that will more or less boil down to the Supreme Court of South Africa being competent to interpret or enforce the constitution and the convertions and to inquire into or pronounce upon the validity of a decision of the President that matters mentioned in the relevant decision are own affairs of a population group, or are not own affairs of a population group, as the case may be. Unfortunately we cannot do so, because we cannot move an amendment to an instruction when we can move an amendment to the clause itself. This is, however, the CP’s approach to this matter.

If clause 18 had not been part of the Bill, the hon. member for Sandton’s request for an instruction would not have been necessary, This means that both the instruction and clause 18 are unacceptable to us. The inherent right of the courts in common law terms should therefore be preserved. This would have solved the Government’s whole problem as far as the delicate issue is concerned.

Let us now assess the hon. member for Sandton’s motion in the light of the common law position. He is asking for the Supreme Court to be empowered to act as the final authority when it comes to the interpretation and enforceability of the constitution and its conventions. That inherent power the court does, in any case, have. It does have the final say in interpreting and enforcing a law. There is some dispute about whether the courts are also empowered to enforce a convention. There is uncertainty about whether, in common law, the courts have the right to enforce a convention. I think it is desirable to consider introducing this into this new dispensation. We shall, however, be coming back to that at a later stage. One now asks oneself: How this is to be done? On the basis of present-day law in South Africa, the first sub-section of the instruction is therefor unnecessary.

The second matter involves pronouncing on the validity of certain presidential decisions. If it were not for clause 18, the courts would have had the inherent right to review presidential decisions.

On merit?

On merit too. The courts would have been able to review them, because the overall merit of the presidential decisions would, in terms of clause 18, be subject to the courts’ testing right. What is more, had it not been for the contentious clause 18, any citizen would be in a position to appeal to higher authority against presidential decisions, whether by way of an interdict, by way of a mandamus or whether by way of a declaration of rights. This would not affect the sovereignty of Parliament, because what is involved here is a decision of the President, though in consultation with the Cabinet, it is true. It is nevertheless still the President. In this specific instance, the governing party could show its good faith by placing this testing right beyond all doubt. The criticism levelled at the Government is that the President is going to obtain dictatorial powers. Our argument is that if, in terms of clause 18, which is of cardinal importance, a presidential decision were to be subject to a testing right, this would eliminate a very important argument about the President becoming a dictator. Do hon. members know how cardinally important this is? In this regard the President is also the legislative entity. Whereas the present constitution empowers the provincial authorities to make ordinances in certain cases, and empowers the local authorities to issue bye-laws in certain instances, this legislation empowers the President to state: This legislation will go to Parliament, to House No. 1, House No. 2 or House No. 3. That presidential decision is of vital importance, and it would penetrate to the very quick if, for example, he were to decide that a matter is a general affair, whilst a certain population group felt that it ought to be an own affair. That is why it is of cardinal importance for that decision of the President, acting in consultation with the Cabinet, to be subject to a testing right. He is only a fallible human being, after all, even if he is acting in consultation with wise men in his Cabinet. Under normal circumstances a dictator is a dictator on a life-long basis, but in terms of this Bill he is a dictator for a period of five years, acting as in consultation with his Cabinet. In those five years he could commit unparalleled and appalling injustices, and yet he would be subject to no testing right on the part of the courts. Here the Government now has an opportunity to state whether it is really interested in the law having sovereignty over the decisions of a fallible human being.

Now I come to the third aspect of the instruction moved by the hon. member for Sandton. Here, too, if it were not for clause 18, the courts would in any event have had a testing right to ascertain whether the rights of the community, or a group of people, as set out in the constitution, were being jeopardized. Therefore the CP’s approach in this connection is that if the hon. the Minister were to indicate that he would delete clause 18, we would not vote against the instruction. If not, we shall not participate in the voting; we cannot move an amendment, as I have just said.

To illustrate the arguments I have advanced, I want to refer to the evidence presented to the Select Committee in this connection. I am referring to the evidence of Prof. Van der Vyver of Wits University in which he said that the exclusion of the court’s jurisdiction in terms of section 20—now clause 18—was highly undesirable in the light of the declaration of intent in the preamble, i.e. to uphold the independence of the judiciary and the quality of all under the law. On page 4 of his memorandum Prof. Wiechers says that the attempt to exclude the jurisdiction of the courts in the case of decisions by Parliament on own and general affairs creates a great deal of suspicion. On page 10 of his memorandum Prof. Dean of the University of Cape Town makes a certain proposal in regard to an amendment to the clause, and then says—

This is what he proposes—

The Labour Party of South Africa also adopted this standpoint in its memorandum and in its evidence. I should like to quote paragraph (c) of the Labour Party’s memorandum on page 13, S.C. 8B—’83, Part II, of the report of the Select Committee on the Constitution—

As far as the Labour Party’s verbal evidence is concerned, let met refer, in particular, to pages 45, 46 and 48 to 53 where they were examined very earnestly and in depth by hon. members of the governing party in an effort to ascertain whether there was no other possible method of solving the problem. On page 52, for example, the hon. the Minister of Justice asked whether the decision could not possibly lie elsewhere, to which Mr. Curry replied—

I also want to refer to the memorandum of the Johannesburg Attorneys’ Association, memorandum 31. They say that it is true that the first objection was eliminated by virtue of the fact that provision was made for the State President to act in consultation with his Cabinet. But on page 3, paragraph (7), the Attorneys’ Association states—

In this regard I agree with the hon. member for Sandton. [Interjections.] I quote further—

It goes on to state—

That is also what the Bar Council says. I want to quote a final sentence from the Attorneys Association memorandum—

The Society of Advocates makes the same point on pages 3 and 4 of their memorandum. The hon. the Minister is aware of that. The evidence of the Rev. Mannikkam of the Association of Cape Management Committees corroborates this argument. The hon. the Minister is striving to achieve consensus. Well, here there is consensus. The legal men, the leaders of the Labour Party and various witnesses giving evidence before the Select Committee are ad idem about the fact that these are arbitrary powers and that the court’s natural or inherent right to review such a decision should not be encroached upon and that citizens should be protected against arbitrary decisions of the authorities, particularly when such decisions involve the very essence of a population group’s identity. Therefore we are merely requesting the reinstatement of the inherent common law jurisdiction of the Supreme Court in which we all have confidence. Unless Government members can give us the assurance that clause 18 will be deleted, we cannot vote for the instruction, nor vote against it. For that reason we shall not take part in the voting.

Mr. Speaker, the hon. member for Sandton’s proposal has far-reaching and very drastic implications in our law. Not only are the courts to be given testing powers, but they are also to participate in the legislative process and even have final authority in that process. This is a principle which is completely foreign to our laws and has never been valid within the context of our law. On the contrary, the general rule is that our courts shall interpret laws and not make them: jus dicere non dare. The hon. member’s motion proposes to change that position drastically. The proposed constitutional court, which is to consist of all the judges of the Appeal Court, will now be expected to participate in the political process because they will have to pass judgment on the actions of the President. The hon. member Mr. Schutte has dealt very comprehensively with the consequences of the courts making laws and I do not want to go over that again. I should just like to refer to one argument of the hon. member for Sandton, namely that our courts are held in high regard and instill great confidence in the general public. This is true, and I agree wholeheartedly. This is a situation which has been built up over many years. The courts have not descended into the political arena where, it is always said, there is so much dust in their eyes that they cannot properly perform their function. The courts have, in fact, built up their reputation because they have always been above politics. The hon. member for Sandton is now using that respect, which the courts have built up by virtue of not being involved in politics, to try to get them involved in politics. As the hon. member Mr. Schutte explained, in this way the courts would lose their prestige. Recently I read in De Rebus how sensitive our courts are to the fact that they may possibly be seen as political instruments. It is true that certain judges specialize in certain types of cases. In an interview with the editor it was hinted that certain political cases are always heard by certain judges. Strong objection was made to the innuendo that certain judges would be selected to hear certain cases owing to their affiliations. It was very clearly spelled out that this is merely done owing to previous experience and a judge’s field of specialization. Our courts are therefore very sensitive about this matter. If the instruction were to be approved, it would in fact give the courts a role they have never wanted in the past and have never asked for either.

The instruction goes a step further by the expressed desire, in paragraph (1), to give the proposed constitutional court the power to “act as the final authority for interpreting and enforcing the constitution and its conventions”. I want to suggest that our courts are not the institutions to decide on parliamentary customs. I should imagine that courts would not be in a position to take legal cognizance of what the customs are and that evidence would have to be led in this regard. Customs which have been established over the years will constantly have to be reconfirmed when the courts, as the final authority, have to decide on them.

Paragraph (2) of the instruction gives a constitutional court the power to “pronounce upon the validity of certain Presidential decisions”. It goes without saying that the appointment of the President is a political appointment, and he is someone who would have to take political decisions at a certain time and in a certain contest. Our courts, on the other hand, take decisions according to a fixed pattern, decisions based on decided cases. Our courts cannot pass judgment in a certain way one day and in another way the next. Legal consistency requires that one must be able to refer back to previous decisions. In effect, this is a presidential and political decision which applies in a certain context and a specific period in political history. I want to suggest that it would be impossible and unfair for a court to have to take such a decision.

As far as customs are concerned, it is also extremely undesirable for officials to be called to give evidence in court about whether customs have been complied with.

The hon. member for Sandton gave out that the powers the courts had in the case of Harris and Others, which he quoted, no longer exist. If I have interpreted his speech correctly, I must conclude that what he is suggesting is that the courts have now been deprived of those powers. What the Harris decision actually amounted to was that the court found that it was not in fact Parliament which took that decision. There should be no doubt about the fact that our courts have not been deprived of powers in regard to rules of procedure and still have exactly the same powers. What the court decided in that case was that since the proper procedure had not been adopted, that law had not actually been passed by Parliament. We assume it to be a Parliament which acts according to certain rules and in line with its specific composition. I cannot agree with the hon. member that those rights have now disappeared, because the courts will always retain the same testing rights.

By way of interjection, the hon. member for Brakpan replied that the courts should also have testing rights when it comes to the decisions of the President in political cases. If that is his attitude, he is placing the courts in exactly the same position as the hon. member for Sandton is, namely right in the political arena. The courts would have to take the relevant party’s affiliations, standpoints or political attitudes into consideration when passing judgment. This would therefore merely be a political decision which would have all the adverse effects the hon. member Mr. Schutte mentioned. In cases of the court’s decisions being unpopular, this would always give rise to the temptation to appoint judges with the same political convictions as the Government of the day.