Debates rages over Icasa bill

[rpm]

http://mybroadband.co.za/nephp/?m=show&id=1977

 

[rsd]

Government is tabling the 14th constitutional amendment bill, which will take away the power of the courts to review laws that are unconstitutional. [It will] stop the courts from reviewing new laws for constitutionality."

Hmm that seems a bit strange. What possible benefit will this have...? To anyone other than the government of course

 

[LifelongGamer]

Hmm that seems a bit strange. What possible benefit will this have...? To anyone other than the government of course

The benefit will be to introduce a 'Mugabe' type rule whereby Government can arbitrarily implement laws protecting their cashcow (Telkom and SNO) and block competition for at least the next two years. IMO.

 

[Vio]

I don't think they like the idea that there is the rule of law instead of the rule of the ANC.

 

[Sneeky]

Roy talks cr@p, just like the rest of them.
I would love to see this go to the constitutional court.

 

[dominic]

@dominic, alacos: [as a matter of personal interest] what legal procedures must be followed to get a case before the Constitutional Court? - does a case have to first appear before a lesser court?

not sure but would imagine there is a process for petitioning for direct access to the con court in matters such as this which are purely constitutional and will end up there anyway...as alluded to in the article there will be some kind of trigger, being the first time the new law is used to appoint a new councillor

But Padayachie defends the change to the law. He says the process of appointing and dismissing Icasa councillors has been greatly simplified.

For one thing, it removes the president's role in the appointment of councillors. "In the old process, the parliamentary portfolio committee [on communications] had the responsibility of inviting applications, selecting candidates and then recommending appointments to the minister, which then went to the president. The president got involved in confirming appointments of people [but] there was no need for him to be involved."

He also says the process was flawed. The selection of candidates often degenerated into political horse-trading, which resulted in the appointment of people who were not up to scratch. "It was not a process that ensured you got the most professionally competent candidates," he says.

this is patent nonsense and does not stand up to scrutiny

- why does removal of the president's role necessitate the removal of e role of the parliamentary committee?
- questions of constitutionality aside it is blatantly a bad idea - ffs govt own stakes in both national operators + the proposed third operator++++++ and of there was a time to observe some checks and balances and separation of powers between the executive (DoC) and the legislature (parliament) this is it. i could almost go with govt owning such shares as it does if it avoided the conflict of interest and perceptions of bias which flow from its already obvious control of ICASA's pres-strings and personnel
- remember that the parliamentary committe on communications grilled DoC representatives on why LLU was not included in the electronic communications bill & that imo they have shown themselves to be far more competent at telecomms regulation then the all-at-sea DoC which is leaking key staff at truly alarming rate
- political horse-trading a reason for changing it? BS RP, BS! aside from the fact that the anc majority does not need to horse-trade political horse-trading is what happens in a political system ffs (maybe RP will move on to tackle the floor-crossing legislation next)
- sorry to say but, on the basis of its track record, entrusting the DoC with designing and controlling a process to ensure the "most professionally competent candidates" is nothing other than a method of ensuring that nothing happens fast

blerrrgh

 

[MaD]

"I have thought long and hard about petitioning the president to send the bill back to parliament so that the national assembly could restore it to our compromise," Smuts says. "I decided not to petition him because I can't see that bearing fruit. Government is tabling the 14th constitutional amendment bill, which will take away the power of the courts to review laws that are unconstitutional. [It will] stop the courts from reviewing new laws for constitutionality."

What does THAT mean?

 

[dominic]

cannot help but think the journo has got something wrong with that....may be that the process whereby a law can be referred to the con court prior to commencement for a declaration on its constitutionality may be scrapped ()tho i have no idea why)...this would not stop someone taking a matter to the con court tohave a law which is affecting them declared unconstitutional

 

[MaD]

cannot help but think the journo has got something wrong with that....may be that the process whereby a law can be referred to the con court prior to commencement for a declaration on its constitutionality may be scrapped ()tho i have no idea why)...this would not stop someone taking a matter to the con court tohave a law which is affecting them declared unconstitutional

........and what does that mean?

 

[pupa]

Hmmm sounds more and more like strict control to whom will run Icassa. All Telkom stockholders? selected by P Ivy in person, i.e. bigger payoffs and backpocket deals. So more sleep and meals avaiable for the fat ..... so we suffer!

 

[dominic]

I would also like clarification on that, but I assumed it meant that magistrates/judges in ordinary courts [i.e. any court other than Constitutional Court] would no longer be allowed to make a ruling contrary to what the constitution or specific legislation states - particularly when magistrate/judge disagrees with a particular part of the constitution/legislation and how it might relate to the case that they are judging - purely a thumbsuck speculation on my part . I'm also not aware of any specific instances where such a thing has happened & therefore my assumption about the meaning is likely to be totally off...

happens a lot - not clued on this but i think where a mag comes across such an issue it can be referred to the concourt; high court judges can make a ruling on consitutionality which can be appealed to the con court

for example - in criminal law the constitution ushered in the presumption of innocence which had the effect of making quite a lot of stuff unconstitutional. previously there were a lot of presumptions which were made and which an accused person would bear the burden of disproving..e.g. if you were caught with more than a certain mass of marijuana it woud be presumed in your prosecution that you were dealing - a more serious offence than possession. the accused would then have to prove that she was not a dealer. under the presumption of innocence and right to fair trial the state generally has to prove all the elements of the crime without such presumptions.

when someone with enough cash got prosecuted they raised the constitutional issue and eventually the con court "struck down" the offending presumption - the case would then be sent back to the magistrate's court and the state would have to prove everything

blahblah

@ MaD: i have a feeling you have become quite literate in legalese of late

 

[MaD]

@ MaD: i have a feeling you have become quite literate in legalese of late

Hmmmm.. it wasn't by choice mind you, but a good thing nonetheless

 

[captainwifi]

... and endup with the parliamentary Communications Portfolio Committee being solely & unanimously responsible for hiring & firing ICASA councilors - if ICASA is going to be independent from guavamint interference then neither the president nor MoC should have any involvement in appointing councillors.

I don't want Icasa to be independent, it should be under the full control of
the president himself. Before the new bills Icasa was under the control
of Telkom. The moment Jhb installed a wireless link or BuffaloCity setup a link
Telkom would phone Icasa and instruct them to take it down.
Mbeki blew a gasket and gave Jhb a PTN license - problem solved.
With Mbeki now finally fully behind the consumers of IT via his digital hubs, we
are free from Icasa and can do whatever we want.

 

[dominic]

I don't want Icasa to be independent, it should be under the full control of
the president himself. Before the new bills Icasa was under the control
of Telkom. The moment Jhb installed a wireless link or BuffaloCity setup a link
Telkom would phone Icasa and instruct them to take it down.
Mbeki blew a gasket and gave Jhb a PTN license - problem solved.
With Mbeki now finally fully behind the consumers of IT via his digital hubs, we
are free from Icasa and can do whatever we want.

hey kids
please note that the quoted section above is largely unburdened by factual content
regards

 

[LoneGunman]

"I don't want Icasa to be independent, it should be under the full control of
the president himself..."

Sorry, but its anti-democratic to suggest centralising power and handing decision-making over to just one person, regardless of what that person may have done previously which 'indicates' that this is a 'good' idea..

A good Democracy needs the checks and balances, of structures in place - regardless of the bribed, corrupt and thoroughly inefficient swine who people the structures at present.

One could perhaps even argue that its possibly a long term tactic by the President's office, to make people suggest this very step - in the misguided belief that 'getting things done' is more important, than 'preserving democracy' - and thus voluntarily giving up the structures of the democratic process itself, without any visible 'power-grab' from the President's Office itself.

Anything which suggests handing over decision-making to a person or an office, that was formerly done by (theoretically) public-elected officials, is Not A Good Thing..

 

[mavx]

"But Padayachie defends the change to the law. He says the process of appointing and dismissing Icasa councillors has been greatly simplified."

Surely therein lies a flaw, wouldn't it be a better idea to look towards efficiency and consistency. Government just cant keep their grubby paws off anything!

 

[AntiThesis]

Government is tabling the 14th constitutional amendment bill, which will take away the power of the courts to review laws that are unconstitutional. [It will] stop the courts from reviewing new laws for constitutionality."

Err... forgive my lack of legal understanding but this statement worries me way more than anything else said in the article. Would this bill (should it come to pass) be universal rather than specific? In other words, would this bill encompass all laws made by govt?

If so, sirens should be going off in everyone's heads...

 

[mcleodd]

Err... forgive my lack of legal understanding but this statement worries me way more than anything else said in the article. Would this bill (should it come to pass) be universal rather than specific? In other words, would this bill encompass all laws made by govt?

If so, sirens should be going off in everyone's heads...

Hi all,

Allow me to "de-lurk" for a moment to post this story from the 13 January issue of FM. Hopefully it will clarify a lot of the issues in this thread. I'm amazed this story hasn't received more attention in the media.

Rgds, Duncan


New bill may clip courts' wings

By Jacqui Pile, Financial Mail

Using the December lull, government has quietly published a bill in the Government Gazette which will significantly reduce the power of all courts, except the constitutional court.

In the holiday shut-down, the Constitution Fourteenth Amendment Bill almost went unnoticed. Public comment closes on January 15.

And, as in 2005, this latest move promises to mire the justice department in more controversy. The proposed changes to the constitution worry legal academics and opposition parties who fear it will stop all courts lower than the constitutional court from preventing poorly drafted or harmful legislation from coming into force.

Coming hot on the heels of a messy court battle over pharmaceutical pricing regulations, in which government was asked to redraft certain sections of the Medicine Act, the proposals raise concerns about the independence of the judiciary.

"Any change to the constitution signals a red light," says Unisa professor emeritus Prof Marinus Wiechers. "But this is a very drastic measure which reduces the inherent review powers of the courts."

The pharmaceutical pricing case highlighted government's difficulty in implementing laws that it feels will help it to achieve its socio political objectives.

In that case government had attempted to fix the fees pharmacists charge in an effort to bring down the costs of private health care . But it also exposed weakness. Though the intention of the legislation was noble, its execution was sloppy and pharmacists argued that had it come into force, it would have put them out of business.

"It's clear government is concerned that the will of the legislature (and therefore the people) is being stymied by the courts," says Democratic Alliance justice spokesman Sheila Camerer. "But any amendments to the process should not inhibit the courts' right to address the constitutionality of legislation."

The bill deals with a grey area of the law: the time between a bill being passed by parliament but before it is signed into law by the president .

Currently the lower courts can stop legislation going into force if it is found to be deficient. In the pharmaceutical pricing case, the supreme court of appeal declared the medicine pricing regulations to be fatally flawed and therefore of "no force or effect".

"But the courts have been very circumspect about doing that," says Wiechers. "Only in cases where bad elements permeate the entire body of legislation will it be stopped from commencing'."

Camerer says the wording of the bill needs to be tailored. This would allow courts to retain their power to declare a law unconstitutional once it came into force. But should courts be able to prevent a law from even coming into force? Wiechers says yes. It can take years for a court challenge to be finalised and by then the damage of poor legislation is done.

But there are other clauses in the bill that are just as controversial. "The whole bill is very worrying," says Camerer. The bill places the constitutional court at the apex of the court hierarchy with jurisdiction in all constitutional matters and any other matter in which it may grant leave to appeal.

Under the current system, the supreme court of appeal is the highest court on all matters, such as criminal or commercial cases, except those that deal with constitutional issues.

"If you create one highest jurisdiction on all matters, it makes it easier for the ruling party to appoint judges to that court to be their mouthpiece," says Wiechers. "It's a step closer to making the courts a political tool."

Also worrying is that the bill excludes the judicial services commission (JSC) - made up of a number of representatives including opposition parties - in the appointment of high court judges-president and their deputies.

Instead, the president merely needs to consult the chief justice and cabinet member responsible for the administration of justice.

The bill has gone through with few changes, despite a backlash from judges when it was discussed at a colloquium last year. It reflects government's determination to get its socio-economic agenda through, amid concerns that various delivery programmes could be delayed by lengthy court cases.

Last year, judges were outraged at what they saw as the bill's threat to their independence.

This included a shift in control of the administration and budgets of all courts away from the chief justice and under the authority of the justice minister.

The justice department says the bill is now in the hands of the portfolio committee on justice. "The process of parliament has now begun and we can't comment on it," says justice spokesman Kaizer Kganyago.

 

[dominic]

thx duncan

small problem for govt is that the constitutional amendment will itself be challenged and it will be left to the con court to determine whether the amendment is constitutional or not...