THE RIGHT TO ABORTION HAS NOT BEEN IMPLICATED
WOMEN'S LEGAL CENTRE PRESS STATEMENT
2006-08-28
Today the Constitutional Court handed down a decision in Doctors for Life International v Speaker of the National Assembly and others. This case is about a constitutional challenge launched against four Bills, three of which have now become Acts. Doctors for life contended that Parliament had failed in its duties to facilitate public participation when it passed the Bills.
One
of the legislation implicated is the Choice on Termination of Pregnancy
Amendment Act no.38 of 2004 ("The Amendment Act").
Earlier today and continuing throughout the day are media reports to the
effect that the
Constitutional Court
ruling could make abortion illegal. This
information is however not accurate. The
right to terminate pregnancy legislated for in the Choice of Termination of
Pregnancy Act ("the Act") 92 of 1996 Act was not subject to the
Constitutional Challenge. The right was not implicated and therefore remains
intact.
The
amendment Act sought to amend definitions and to empower MEC's to designate
certain facilities as facilities where abortions could be performed and also to
provide a definition as to who qualifies to be a midwife, and to exempt
facilities offering a 24-hour maternity service from having to obtain approval
for termination of pregnancy under certain circumstances, among other things.
The Substantive provisions of both the Act and the amendment Act were not
challenged. The challenge related to the procedure that was not followed by
Parliament when the legislation was passed.
The
implication of the decision is that the three Acts, including the Choice on
Termination of Pregnancy Act, are invalid to the extent that Parliament has
failed to comply with its duty to facilitate public involvement. The order of
invalidity has however been suspended for 18 months to enable Parliament to pass
the legislation in a manner that facilitates public involvement.
This means that decisions made in accordance with the Amendment Act will
continue to be valid until 17 January 2008, when the 18 Month period given by
the
Constitutional Court
comes to an end. It will only be
decision or actions that purport to be taken in terms of the Amendment Act after
17 January when 2008 that will be visited with invalidity.
Even then, unless something drastic happens in the meantime, abortion
will still be legal. It is only the provisions of the Amendment Act that will be
invalid.
This
decision is an important one for civil society formations and individuals who
work with Parliament and are involved in law reform efforts.
It
is an important step towards setting out Parliament's Constitutional obligations
in facilitating public involvement. The
Court has held that Parliament has to provide citizens with a meaningful
opportunity to be heard in the making of laws that will govern them.
The decision also provides a list of what the Court will look into when
inquiring whether the Parliament has complied with the duty that was contended
for in this case. The legislation
complained of had generated public interest and this was evidenced by the
requests for public hearings. The National Council of Provinces ("NCOP")
had made a decision that hearings would be held in provinces and the majority of
provinces but did not hold public hearings due to insufficient times and this
was communicated to the NCOP. The
court held that this constituted unreasonableness.
The
need for civil society to continue engaging with Parliament cannot be
underscored and although parliament has the discretion on how to facilitate this
engagement the courts have stated that they will intrude on Parliament's domain
if there is a dispute on whether the constitutional requirements have been
fulfilled.
Prepared
by Sibongile Ndashe
Attorney,
Women's Legal Centre
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