Fulltextczapanskiy

K C & RM 11/20/2008 9:34:45 A M
THE RIGHT OF PUBLIC PARTICIPATION IN

THE LAW-MAKING PROCESS AND THE ROLE
OF LEGISLATURE IN THE PROMOTION OF
THIS RIGHT
KAREN SYMA CZAPANSKIY AND RASHIDA MANJOO*
INTRODUCTION
By definition, a democratic nation has some mechanism through
which leaders hear from the people. Ordinarily, the mechanism is a
periodic election during which the people have an opportunity to hold
leaders accountable. Between these traditional opportunities for
democratic involvement, however, should a democratic nation have
mandatory mechanisms for give and take between legislative leaders
and the public? The South African Constitutional Court held that the
South African Constitution answered that question affirmatively in
1
Doctors for Life v. Speaker of the National Assembly. By way of
contrast, no such requirement has been found in the United States
Copyright © 2008 by Karen Syma Czapanskiy and Rashida Manjoo.

* Karen Syma Czapanskiy, J.D., Georgetown University Law Center, B.A., University of
California at Berkeley, is a Professor at the University of Maryland School of Law. She served
as a Fulbright Lecturer at the University of Durban-Westville in 1994 and worked with South
African faculty to improve clinical legal education under a Ford Foundation grant from 1995
through 1997. Rashida Manjoo (LL.M) is the 2008/9 Des Lee Visiting Professor of Global
Awareness, Webster University (USA) and also a Research Associate in the Law Faculty,
University of Cape Town, South Africa. She served as the Parliamentary Commissioner for the
Commission on Gender Equality, South Africa, between 2001- 2005. We acknowledge the
valuable insights offered by participants at seminars held at the University of Maryland School
of Law, the Human Rights Program at Harvard Law School and the South Africa Reading
Group at New York Law School. We also acknowledge the written comments received from
Professors Hope Lewis, Martha Minow and Henry Steiner. Rashida Manjoo thanks the Human
Rights Program at Harvard Law School for funding received through the Eleanor Rooseveldt
Fellowship during the course of writing this paper. Karen Czapanskiy thanks the University of
Maryland Foundation for research support. Both authors thank Cassim Manjoo, Dana
Czapanskiy and Sara Criscitelli for engaging in many long conversations which inspired us and
helped to clarify our thoughts.
1. Doctors for Life Int’l v the Speaker of the Nat’l Assembly & Others 2006 (12) BCLR
1399 (CC) (S. Afr.).
1
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
2 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 19:1
Constitution.2 In the international human rights arena, the

International Covenant on Civil and Political Rights provides
authority for a mandatory mechanism in General Comment 25, but it
has attracted little attention.3 As advocates in our respective
countries, we found the South African decision provocative. This
article attempts to examine the impact of the requirement in our
respective contexts, as well as further the discussion in the context of
international human rights norms.
As the most recent South African Constitutional Court judgment
relating to the involvement of citizens in the law-making process,
4
Doctors for Life gave rise to three crucial issues: first, the nature and
the scope of the constitutional obligation of a state’s legislative organ
to facilitate public involvement in its legislative processes and its
committees, and the consequences of the failure to comply with that
obligation;5 second, the issue of timing and scope,6 i.e., at what stage
in the legislative process and the extent to which the Constitutional
Court may interfere in the processes of a legislative body in order to
enforce the obligation to facilitate public involvement in law-making
7
processes; and finally, whether the Constitutional Court is the only
court that may consider the questions raised.8 This paper will limit
itself to dealing broadly with the first question, the nature of a
2. While the right to petition the Congress is well-established, as is the Congressional duty
to maintain a public journal of its activities and its custom of open hearings, no authority exists
for a requirement that a member, committee or a house of Congress must solicit input, much
less facilitate its delivery. See generally U.S. CONST. art. I.
3. International Convenant on Civil and Political Rights art. 25, Dec. 16, 1966, 999
U.N.T.S. 171 (“Every citizen shall have the right and the opportunity, without any of the
distinctions mentioned in article 2 and without unreasonable restrictions: 1. To take part in the
conduct of public affairs, directly or through freely chosen representatives; 2. To vote and to be
elected . . . ; 3. To have access, on general terms of equality, to public service in his [sic]
country.”).
4. Doctors for Life, 2006 (12) BCLR 1399 (CC) at 36-37 (S. Afr.); see also King & Others
v Attorneys Fund Bd. of Control & Another 2006 (4) BCLR 462 (SCA) (S. Afr.); Minister of
Health & Another v New Clicks S. Afr. (Pty) Ltd & Others 2006 (1) BCLR 1 (CC) (S. Afr.);
Matatiele Municipality & Others v President of the Republic of S. Afr. & Others 2006 (5) BCLR
622 (CC) (S. Afr.).
5. Doctors for Life, (12) BCLR 1399 (CC) at 36-37 (S. Afr.); see also King & Others, 2006
(4) BCLR 462 (SCA) (S. Afr.); Minister of Health & Another, 2006 (1) BCLR 1 (CC) (S. Afr.);
Matatiele Municipality & Others v President of the Republic of S. Afr. & Others 2006 (5) BCLR
622 (CC) (S. Afr.).
6. Doctors for Life, 2006 (12) BCLR 1399 (CC) at 36-37 (S. Afr.).
7. Id. The separation of powers question is addressed in Dennis M. Davis, Transformation
and the Democratic Case for Judicial Review: The South African Experience, 5 LOY. INT’L L.
REV. 45 (2007).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
2008] RIGHT OF PUBLIC PARTICIPATION IN LAW-MAKING 3
legislative body’s duty to facilitate input, using debates relating to the

notions of human rights and participatory democracy.
Legal scholars Carolyn Evans and Simon Evans argue that:
[I]n established democratic States, legislatures perform
several distinct functions. They are representative bodies
providing a mechanism by which citizens participate in
public affairs and government; they are forums in which
governments can be held accountable for their conduct; and
they are (more or less) deliberative law-making bodies. In
discharging each of these functions they can affect the
enjoyment of human rights.9
The role of the South African Parliament as a ‘deliberative law-
making body’ came under scrutiny in the Doctors for Life case, due to
the applicant’s allegation of an omission in the legislative process.
The seminal value of this case lies in the three bases of the court’s
approach to the role of legislatures in promoting human rights and
democracy through their public participation processes: international
human rights law, a unique and specific mandatory constitutional
duty, and a contextual and historical approach to public
participation.10 The case does not focus on the substance of the
statutes that were the source of the challenge. Instead, the court, as
the enforcer of human rights, examined whether the Legislature
denied the enjoyment of one component of the fundamental human
right to political participation, the general right to take part in the
conduct of public affairs.
This article is underpinned by the knowledge that human rights
are contestable; that debates about rights are an inescapable part of
politics; and that, although judicial rulings on rights may derive from
human rights instruments, such rulings cannot necessarily resolve the
multi-faceted disagreements at the heart of many rights issues.11
Henry Steiner’s description of the right to political participation as an
‘open-textured programmatic right’ which will change in different
contexts and with experiences finds resonance with the majority
judgment’s views of the ‘idea of an evolving human right to political
participation.’12 We support this notion and are of the view that, in the
9. Carolyn Evans & Simon Evans, Evaluating the Human Rights Performance of
Legislatures, 6 HUM. RTS. L. REV. 545, 548 (2006).
10. See generally, Doctors for Life, 2006 (12) BCLR 1399 (CC) (S. Afr.).
11. Evans & Evans, supra note 9, at 550-51.
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
interest of promoting human rights and democracy, the legislative

duty to facilitate public participation is an important one. Hence,
Doctors for Life may provide valuable lessons with respect to citizen
participation in the law-making process, thereby further promoting
human rights values of, amongst others, dignity and respect.
As its thesis, this article draws out and examines two such
lessons: first, legislation is better when legislators are required to
invite and attend to public input, and, second, citizenship is better
when legislators are required to invite and attend to public input.
Doctors for Life, by requiring legislators to facilitate public
participation in the legislative process, puts South Africa on the road
to improving both legislation and citizenship. In the United States,
without a similar mandate, the road is largely untraveled, to the
detriment of democracy in the US. While rejecting traditional
representative democracy as an adequate expression of political
participation, Doctors for Life does not go as far as it could in terms
of entrenching public participation in the South African legislative
process. Nonetheless, it offers a model of an interim solution that the
United States can consider, even in light of significant historical and
contextual differences. The case also offers a model for international
human rights exploration in an area of underdeveloped theory,
especially with regard to enhancing respect and dignity as aspects of
citizenship in a democratic state.
In Part I, this article sets the stage for examining Doctors for Life
with a discussion of the South African and international legal
provisions applicable to the issue of political participation. Part II sets
forth a detailed description of the decision in Doctors for Life. Part
III situates the decision within theories of participatory democracy.
Drawing on the co-authors’ experiences as advocates in our
respective countries in Part IV, we each explore an example of
legislative change and how that process is, or would have been,
different under the requirements of Doctors for Life. In addition, we
each comment on the example provided by the other in light of the
context and history of our home countries. The article concludes by
examining what contributions the Doctors for Life decision could
make to the understanding of respect and dignity as components of
political citizenship in the international human rights context.
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
I. APPLICABLE CONSTITUTIONAL AND INTERNATIONAL

LAW PROVISIONS
A. Legislative Structures and Relevant Provisions

In South Africa, the national legislative authority is vested in
Parliament which consists of two houses: the National Assembly
(NA) and the National Council of Provinces (NCOP).13 The
Constitution also provides for provincial legislatures and local
government structures, which have varying degrees of legislative
power. The NA and the NCOP represent different interests in the
legislative process, with the NA representing “the people . . . to
ensure government by the people” and the NCOP representing “the
provinces to ensure that provincial interests are taken into account”
in the legislative process.14 The participation of both houses of
Parliament is required in the legislative process. In the view of the
court, if either of these democratic institutions fails to fulfill its
constitutional duty in relation to a bill, which includes the duty to
facilitate public participation, Parliament has failed to fulfill its duty.15
The constitutional duty to facilitate public involvement in the
legislative and other processes is found in section 59(1)(a) for the NA;
section 72(1)(a) for the NCOP; and section 118(1)(a) for provincial
legislatures. Section 1(d) sets out the founding values of a multi-party
system of democratic government, which, according to the court,
include ensuring accountability, responsiveness and openness.16 The
Preamble of the Constitution expresses the values that underpin the
goals agreed upon for the establishment of a society based on
democratic values: social justice and fundamental human rights.17 The
Court interpreted the provision in the Preamble which states that
“[T]he foundations for a democratic and open society in which
government is based on the will of the people” as indicating that “the
people of South Africa reserved for themselves part of the sovereign
legislative authority that they otherwise delegated to the
13. S. AFR. CONST. 1996 ch. 4, §§ 42 (1), 43(a), 44(1).

14. Id. § 42 (3)-(4).
16. Id. at 118.
17. S. AFR. CONST. 1996 pmbl. (“We therefore, through our freely elected representatives,
adopt this Constitution as the supreme law of the Republic so as to—Heal the divisions of the
past and establish a society based on democratic values, social justice and fundamental human
rights . . . .”).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
representative bodies they created.”18 The right to political

participation is further strengthened by the political rights clause
found in Section 19 of the Constitution and the clause protecting
freedom of expression found in Section 16 of the Constitution.19
Altogether, according to the Court, this language indicates a broader
20
notion of political participation than simply the right to vote.
Furthermore, both the 1993 and the 1996 Constitutions provide
for the establishment of, amongst others, two independent
commissions to strengthen democratic practices. The Commission for
Gender Equality (CGE) has as one of its functions, “to promote
gender equality and to advise and to make recommendations to
Parliament or any other legislature with regard to any laws or
proposed legislation which affects gender equality and the status of
21
women.” The South African Human Rights Commission (SAHRC)
similarly has the power to promote the observance of, respect for, and
protection of fundamental rights through education, monitoring and
evaluation.22 Both commissions, known as Chapter 9 institutions, have
parliamentary offices that are involved in public consultation and
submission of reports on proposed legislation to Parliament. This is
another unique constitutional provision that allows for the
achievement of public participation in the legislative process.
According to the Court, South Africa “[O]pted for a more expansive
role of the public in the conduct of public affairs by placing a higher
value on public participation in the law-making process.”23
B. International and Regional Obligations

The Court also asserted that the right to political participation is
a fundamental human right based on provisions in both international
and regional human rights instruments. Articles 19 and 25 of the
International Covenant on Civil and Political Rights (ICCPR),
concerning the freedom of expression right and the political right,
consist of at least two elements: a general right to take part in the
conduct of public affairs and a more specific right to vote and/or to be
18. Doctors for Life, 2006 (12) BCLR 1399 (CC) at 117 (S. Afr.).
19. See S. AFR. CONST. 1996 ch. 2, §§ 16, 19.
21. Comm’n on Gender Equality Act 39 of 1996 pmbl.
22. Hum. Rts. Comm’n Act 54 of 1995 pmbl.
23. Doctors for Life, 2006 (12) BCLR 1399 (CC) at 115 (S.Afr.).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
elected.24 Furthermore, the ICCPR guarantees not only the ‘right’ but
also the ‘opportunity’ to take part in the conduct of public affairs. The
Court viewed the ICCPR as imposing an obligation on states to take
positive steps to ensure that their citizens have an opportunity to
25
exercise their right to political participation. In addition to specific
articles in the ICCPR, the United Nations Human Rights
Committee’s General Comment No. 25 encourages States to “adopt
such legislative and other measures as may be necessary to ensure
that citizens have an effective opportunity to enjoy the rights it
protects.”26
The African [Banjul] Charter on Human and Peoples’ Rights
(African Charter) is the applicable regional human rights instrument.
The relevant sections include Article 9 on freedom of expression and
information, Article 13 on freedom to participate in government of
country either directly or through freely chosen representatives, and
Article 25 on the obligation of the state to promote and ensure,
through teaching, education and publication, respect of the rights and
freedoms contained in the Charter. The Court affirmed that this last
provision in the African Charter is more specific than the ICCPR in
spelling out the obligation of state parties to ensure that people are
well informed of their political rights.27
24. See International Covenant on Civil and Political Rights, Dec. 16, 1996, 999 U.N.T.S.
171.
25. Doctors for Life, 2006 (12) BCLR 1399 (CC) at 115 (S. Afr.). Also, in the
environmental rights sector, the United Nations Economic Commission for Europe’s (UNECE)
“Convention on Access to Information, Public Participation in Decision-making and Access to
Justice in Environmental Matters”, recognizes the right of people to live in a healthy
environment, and calls for officials and agencies to provide information and to facilitate
participation in decision-making. The Declaration links environmental rights and human rights
and affirms that the involvement of all stakeholders is crucial for sustainable development. The
principles underlying the adoption of this Convention include government accountability,
transparency and responsiveness; the granting of rights to the public and the imposition on
signatories and public authorities obligations regarding access to information and public
participation and access to justice; and the forging of new processes for public participation in
the negotiation and implementation of international agreements. Convention on Access to
Information, Public Participation in Decision-making and Access to Justice in Environmental
Matters, June 25, 1998, 38 I.L.M. 517.
26. Office of the U.N. High Comm’r for Human Rights [OHCHR], International Covenant
on Civil and Political Rights, General Comment No. 25, adopted July 12, 1996, para. 1,
http://www.unhchr.ch/tbs/doc.nsf/0/d0b7f023e8d6d9898025651e004bc0eb?Opendocument.
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
II. OVERVIEW OF DOCTORS FOR LIFE
A. Facts of the Case

The applicant in this case, an advocacy organization called
28
Doctors for Life, complained that, during the legislative process
leading to the enactment of four statutes, the NCOP and some of the
Provincial Legislatures did not comply with their constitutional
obligations to facilitate public involvement in their legislative
processes. They argued that there had been a failure to invite written
submissions and conduct public hearings on these statutes. The court
referred to the four statues collectively as ‘health statutes.’29
The respondents denied the allegations and argued that both the
NCOP and the various provincial legislatures had complied with the
duty to facilitate public involvement in their legislative processes. The
respondents also challenged the applicant’s assertion as to the scope
of the duty to facilitate public involvement. Their contention was that,
although the duty to facilitate public involvement requires public
participation in the law-making process, essentially all that is required
of the legislature is to provide is the opportunity to make either
written or oral submissions at some point in the national legislative
process.
B. Holding of the case

The majority of the Court found that, regarding section 72 (1)(a)
of the Constitution, Parliament had failed to comply with its
28. According to the website of Doctors for Life International, “Doctors for Life stands for
the following 3 principles: For sound science in the medical profession, the sanctity of life from
conception till death, and for a basic Christian ethic.” Doctors for Life International, Mission
Statement, http://www.doctorsforlifeinternational.com/about/mission.cfm (last visited July 29,
2008).
29. See Doctors for Life, 2006 (12) BCLR 1399 (CC) at 36-37 (S. Afr.). The health statutes
mentioned included the: Traditional Health Practitioners Act 35 of 2004 (intending to bring
about a new dispensation of recognizing and regulating traditional health healers); Choice on
Termination of Pregnancy Amendment Act 38 of 2004 (making provision for registered nurses,
other than midwives, to perform termination of pregnancies at certain public and private
facilities); Dental Technicians Amendment Act 24 of 2004 (making provision for persons who
have been employed as dental laboratory assistants for a period of not less than five years under
the supervision of a dentist or dental technician, and who have been trained by these
professionals, to perform the work of a dental technician); and the Sterilisation Amendment
Act 3 of 2005. There was no dispute as to whether the National Assembly had fulfilled its
constitutional obligation to facilitate public involvement in connection with the ‘health statutes.’
This had taken place through the acceptance of written submissions made to the National
Portfolio Committee on Health, and also by the holding of public hearings.
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
constitutional obligation to facilitate public involvement before

passing the Choice on Termination of Pregnancy Amendment Act
and the Traditional Health Practitioners Act. Adopting a social and
historical context approach, the Court held that certain statutes
require mandatory public consultations. Which statutes require such
consultations can depend on such things as the nature and importance
of the bill, requests received for consultations, and whether or not
30
promises had been made in response to such requests. Public
consultations in such circumstances would be an indicator of respect
for the views of affected people. Adequate consultation is even more
crucial in contexts where the affected groups have been previously
discriminated against, marginalized, silenced, received no recognition,
and have an interest in laws that will directly impact them.31
Furthermore, in terms of the Traditional Health Practitioners Act,
the Court recognized the critical role played by traditional health care
providers in the communities that they served, the standing and status
that they held in such communities, and also the historically
demeaning treatment of this sector in South Africa.
In relation to the Choice on Termination of Pregnancy
Amendment Act, the Court held that this was not an uncontroversial
matter, that great interest had been demonstrated by interested
groups asking the NCOP to hold public hearings, and that
undertakings were made by the NCOP to get the provincial
legislatures to hold public hearings. Independent of such requests, the
NCOP was also of the view that public hearings were necessary on
this particular Bill. The NCOP was notified about the failure of some
of the provincial legislatures to hold hearings, despite its undertaking
to interest groups. Unfortunately, the NCOP did not take any action
to remedy the situation, including the mandatory obligation to hold
32
public hearings at a national level. The Court held that “[T]he
NCOP is not a rubber stamp of the provinces when it comes to the
duty to facilitate public involvement. It is required by the
Constitution to provide a ‘national forum for public consideration of
33
issues affecting the provinces.’”
30. See generally Doctors for Life, 2006 (12) BCLR 1399 (CC) at 146-47, 177 (S. Afr.)
(outlining and giving examples of reasonableness and unreasonableness in regard to legislative
consultations with the public).
31. See Id. at 163-64.
32. S. AFR. CONST. 1996 § 59, pt. 1 (regarding hearings at the national level).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
The Court concluded that both the Traditional Health

Practitioners Act and the Choice on Termination of Pregnancy
Amendment Act were adopted in a manner inconsistent with the
Constitution and both were declared invalid.34 Taking into account
the fact that the statutes had come into effect, and recognizing the
adverse consequences of an immediate order of invalidity, the order
of invalidity was suspended for a period of 18 months to enable
Parliament to re-enact these statutes in a manner consistent with the
Constitution.35
C. The Court’s Rationale

The Court’s interpretation of the Constitutional mandate to
‘facilitate public participation’ was premised on many factors,
34. The constitutional challenges relating to two other bills, the Dental Technicians
Amendment Act and the Sterilisation Amendment Act, were dismissed. This last statute had
not been passed by Parliament at the time of the application, and, although the statute was
already passed at the time of writing of the judgment, the Court reached a decision that it did
not have jurisdiction to hear this, as the legislative process was not complete at the time of
application. The challenge to the Dental Technicians Amendment Act was dismissed as, after
having considered the nature of the Bill and the views of the provinces and the NCOP, the court
concluded that it could not find that the respondents had acted unreasonably in not inviting
written representations or holding public hearings on this Bill. Furthermore, the Bill had not
elicited public interest, as evidenced by the fact that no submissions were received when the bill
was first published for public comment. Hence, there was no breach of the duty to facilitate
public involvement and the applicant’s challenge to this Bill failed. Id. at 70-76, 174-75, 177-78.
35. Id. at 188-89. Three dissenting judges each issued an opinion. Judge Westhuizen agreed
with the majority position on the importance of public involvement for democracy, and was
convinced that there is a constitutional obligation, which must be fulfilled. Nevertheless, he
argued that section 72(1)(a) does not mandate that the legislature has to hold public hearings,
nor is it a specific requirement for the passing of every Bill. Also, the provision is not
constitutionally intended to result in specific legislation being declared invalid by the Court. Id.
at 212-21 (Westhuizen, J., dissenting). Judge Yacoob’s detailed dissenting judgment had the
support of both Judge Westhuizen and Judge Skweyiya. His focus was on determining what the
Constitution required both textually and historically, as opposed to using international law
provisions above constitutional principles, or what the merits of public participation were. Id. at
221-307 (Yacoob, J. dissenting). He agrees that the Constitution envisions a relationship
between representative and participatory elements in South Africa’s democracy. He identifies
three elements which emphasize the participatory aspects of democracy: universal adult
suffrage, a national common voters’ roll, and regular elections. The multi-party democracy
aspect, he argues, points to the representative nature of the democracy contemplated in the
Constitution. He argues that “[T]he object of all these elements of democracy is to ensure
accountability, responsiveness and openness. . . . It implies that our democracy requires citizens
to vote for members of a political party who would represent them. Public involvement in the
legislative process is not mentioned at all as an essential principle of the Constitution. . . . In our
constitutional scheme, laws passed by representatives of the people must be regarded as
government by the people and as laws passed by the people. This is a vital contextual factor in
determining what ‘public involvement’ in the Constitution means.” Id. at 250, 256-57 (Yacoob,
J., dissenting).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
including amongst others: provisions in human rights instruments, the

use of both an historical and a social context approach, an
acknowledgement of the values of dignity and respect that are
engendered by public participation in law-making processes, and
inspiration from a particular vision of a non-racial and democratic
society based on democratic values, social justice and fundamental
human rights, in which government is based on the will of the people.
As discussed in earlier sections,36 the Court’s reference to human
rights instruments, both international and regional, indicates an
awareness of the evolving nature of rights and notions of justice. The
Court re-stated a principle enunciated in a previous decision: “[r]ights
by their nature will atrophy if they are frozen. As the conditions of
humanity alter and as ideas of justice and equity evolve, so do
concepts of rights take on a new texture and meaning.”37
Historically, the struggles fought against an unjust and
undemocratic state included the formation of community structures
based on the concept of ‘people’s power.’ In South African
communities, the traditional forums for public participation included
‘imbizos, lekgotlas and bosberaads’. These methods of public
consultation and participation are used today by the democratic
government and include the convening of an annual People’s
Parliament. The Court, in recognizing the significance of public
participation structures and methods of the past, asserted:
[Traditional forums] were also seen as crucial in laying the
foundation for the future participatory democracy that [the
people] were fighting for and that we are operating under.
This emphasis on democratic participation that was born in
the struggle against injustices is strongly reflected in our new
democratic Constitution and the entrenchment of public
participation in Parliament and the legislatures.38
On a global level, the Court recognized that the right to political
participation dates back to the Middle Ages, and many modern
constitutions provide forums for public participation in different
forms and through different processes, including the right to petition,
present written requests and complaints, and the holding of
referenda.
36. See supra Part I.B.

38. Id. at 119.
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
The Court’s focus on the ‘nature’ of South Africa’s democracy

involved both an historical examination as well as a contextual
interpretation of the Constitution. The merits and values of a
participatory democracy in furthering a system of accountability,
responsiveness and openness in government were widely discussed in
the judgment. In an earlier case, New Clicks, the Court had held that
“[t]he Constitution calls for open and transparent government, and
requires public participation in the making of laws by Parliament and
deliberative legislative assemblies.”39
The interpretation of the mandatory obligation on the
Legislature to facilitate public involvement was also grounded in the
context of the historical exclusion of the majority of people from
political processes and the goals in the Constitution to support
transformation. The Doctors for Life Court recognized two aspects of
the duty to facilitate public involvement: the duty to provide
meaningful opportunities for participation in the law-making process
and the duty to take measures to ensure that people have the ability
40
to take advantage of the opportunities provided. Hence, “our
constitutional framework requires the achievement of a balanced
relationship between representative and participatory elements in our
democracy.”41 Furthermore, the Court pointed to the transformative
need for government to respect the dignity of citizens as a way of
strengthening its conclusion that a special duty existed as regards to
public participation. The legislature can satisfy its duty in any of a
number of ways, according to the Court, depending on the particular
legislative context. Examples include providing access to Parliament,
providing an opportunity to submit representations and submissions,
providing a forum for public hearings for oral submissions, and
summoning people to Parliament.
D. Court’s Self-imposed Limits

At first glance, one can view Doctors for Life as a prime example
of judicial activism gone too far. However, a more nuanced reading
reveals a fairly balanced majority judgment which illustrates a deep
awareness of the doctrine of separation of powers, the careful use of
judicial discretion, and acknowledgement of the limitations faced by
39. Minister of Health & Another v New Clicks S. Af. (Pty) Ltd & Others 2006 (1) BCLR 1
(CC) at 344-47 (S. Afr.).
41. Id. at 127.
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
courts. For example, the Court cited the King case, where the
Supreme Court of Appeal, in dealing with the concept of public
involvement, made the following observation:
Public involvement might include public participation
through the submission of commentary and representations:
but that is neither definitive nor exhaustive of its content.
The public may become ‘involved’ in the business of the
National Assembly as much by understanding and being
informed of what it is doing as by participating directly in
those processes. It is plain that by imposing on Parliament
the obligation to facilitate public involvement in its
processes, the Constitution sets a base standard, but then
42
leaves Parliament significant leeway in fulfilling it.
The Court acknowledged that the legislature will have considerable
discretion in determining how best to achieve the facilitation of public
participation. Hence, Parliament must be free to carry out its
functions without interference and, in terms of section 57 (1) (a) of
the Constitution it has the power to “determine and control its
internal arrangements, proceedings and procedures. The business of
Parliament might well be stalled while the question of what relief
should be granted is argued out in the courts. Indeed the
parliamentary process would be paralyzed if Parliament were to
spend its time defending its legislative process in the courts. This
would undermine one of the essential features of our democracy: the
43
separation of powers.”
The determination by the Court is based on a reasonableness test
that takes into account the factual basis. The Court took into account
42. Doctors for Life, 2006 (12) BCLR 1399 (CC) at 141-42 (S. Afr.) citing King & Others v
Attorneys Fidelity Fund Bd. of Control & Another 2006 (4) BCLR 462 (SCA) at 23-24 (S. Afr.).
43. Doctors for Life, 2006 (12) BCLR 1399 (CC) at 59-60 (S. Afr.). The Court was clear
that the separation of powers principle is not simply an abstract notion. It “. . . has important
consequences for the way in which and the institutions by which power can be exercised. Courts
must be conscious of the vital limits on judicial authority and the Constitution’s design to leave
certain matters to other branches of government.” In a context where the Constitution is the
supreme law, and where it imposes binding obligations on all branches of government, Courts
are required by the Constitution ‘to ensure that all branches of government act within the law’
and fulfill their constitutional obligations. In terms of section 2 of the Constitution, the
Constitutional Court “has. . .the responsibility of being the ultimate guardian of the
Constitution and its values.” “[Y]et, however great the leeway given to the legislature, the
courts can, and in appropriate cases will, determine whether there has been the degree of public
involvement that is required by the Constitution.” Thus the Court has a role in deciding whether
Parliament has fulfilled its obligations, including in providing citizens with a meaningful
opportunity to be heard. Id. at 60-63, 128 (citations omitted).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
questions such as, amongst others, the following: what action has
Parliament taken? Is it reasonable in all the circumstances? Are the
rules of Parliament relating to public participation reasonable? How
controversial is the Bill, and is there a reasonable degree of public
44
interest in it? Did the legislation need to be passed urgently?
III. THEORIES RELATING TO THE NOTION OF

PARTICIPATORY DEMOCRACY
The judgment in Doctors for Life grounded the right to
participation in, among other sources, international human rights
norms. Henry Steiner, in the article cited by the court, describes the
international human right to take part in governance as having two
aspects: the right to vote and the right to participate between
elections.45 The first is well-developed, while the second, according to
Steiner, remains rather vague. Doctors for Life concerns the second,
less well-developed aspect of the international human rights norm
concerning public participation in the process of governance between
elections.46
In recent years, theoreticians on the subject of participatory
democracy have identified two models for citizen engagement in
governance between elections: strong democracy and discourse, or
44. Id. at 146-47.

45. Henry J. Steiner, Political Participation as a Human Right, 1 HARV. HUM. RTS. Y.B. 77,
78 (1988).
46. Both elections and participation between elections are necessary, of course, only if they
contribute to the legitimacy of the laws adopted through the process. As Peter Shane has put it,
Both elections and public deliberations are mechanisms, not ends in themselves.
The overarching issue is what these mechanisms are intended to achieve. If we start
from the premise that legitimacy is that quality of government that gives those in
power the moral authority to impose their will on members of the polity, then, as I
have argued elsewhere, democracy’s claim to legitimacy rests on two premises. One
is that, as opposed to other systems, it is more likely to facilitate government
decision making that at least takes seriously the interests of all persons subject to
the decision at issue. Equal respect for all persons is thus one of the moral building
blocks of democratic legitimacy. The second is that, as opposed to other systems,
democracy empowers individuals with meaningful agency. That is, a democratic
regime, properly constituted, allows citizens to experience themselves as
autonomous actors free to participate in the determination of their political fate.
These are the qualities of government that both elections and public deliberation
aim to achieve, the ends to which they function as our most powerful means.
Peter M. Shane, Deliberative America, 1 J. PUB. DELIBERATION 10, 10 (2005) (reviewing
BRUCE ACKERMAN AND JAMES S. FISHKIN, DELBERATION DAY (2004) and ETHAN J. LEIB,
DELIBERATIVE DEMOCRACY IN AMERICA: A PROPOSAL FOR A POPULAR BRANCH OF
GOVERNMENT (2004)).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
dialogic participation. Both stand in contrast to “thin” or purely

representative democracy, in which the citizen’s role is to elect
representatives periodically. Political accountability in a purely
representative democracy is achieved at the ballot box: those who fail
to satisfy the electorate are not returned to office in the next election.
Citizen input between elections is not forbidden, but it is not
mandated.
The concept of strong democracy described by Benjamin Barber
in his book of the same name is characterized by a continuous process
of citizen deliberation.47 No principle is sacred or beyond change
through the political process. Deliberation, or strong democratic talk,
is at the heart of strong democracy. It is characterized, according to
Barber, by “listening no less than speaking; second, it is affective as
well as cognitive; and third, its intentionalism draws it out of the
domain of pure reflection into the world of action.”48
Dialogic participation shares with strong democracy a
commitment to engagement by citizens with one another to develop
points of view and positions. As described by Jürgen Habermas,
dialogic participation is process-oriented, rather than protective of
particular principles.49 Like strong democracy, dialogic participation
relies on building connections among people and groups; it cannot
occur if people are isolated from one another. As described by
Shannon, democratic process requires active, animated citizens, who
engage with each other to identify and understand their political
interests, to discover their social values and to decide public issues
through public debate. When the process works, public decisions are
the product of social learning, rather than simply a bureaucratic
process of proposal and response.50
According to classic and modern advocates for participatory
democracy, the more that citizens are engaged in self-governance, the
51
more they gain in self-respect, autonomy and empathy for others.
As they work together, they learn the art of give and take and
become more willing to accept decisions that advance the common
47. BENJAMIN R. BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW

AGE at 117-19 (3d ed. 2003).
48. Id. at 174.
49. Jurgen Habermas, Three Normative Models of Democracy, 1 CONSTELLATIONS 1, 1-10
(1994), reprinted in CONSTITUTIONALISM & DEMOCRACY 277 (R. Bellamy ed. 2006).
50. Margaret A. Shannon, Participation as Social Inquiry and Social Learning, 157
SCHWEIZ Z. FORSTWES 430 (2006).
51. CAROLE PATEMAN, PARTICIPATION AND DEMOCRATIC THEORY 22- 44 (1970).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
good even when their individual good may be disserved.52 It can serve
53
as an antidote to apathy and a tonic for empathy.
The judgment in Doctors for Life does not reject representative
democracy as fundamental to the structure of the South African
government under the post-apartheid constitution. Instead, it insists
that representative democracy is not the only aspect of democracy
contemplated by that constitution. In addition, the Court concludes
that the constitution requires some participation between elections.
The question, then, is what kind of participation is consistent with
what is fundamentally a representative democratic structure.
While the boundary between strong democracy and dialogic
democracy may not be entirely plain, the path taken by the Court in
Doctors for Life is more within the territory mapped by dialogic
democracy than strong democracy. For example, while Barber posits
that agenda-setting must be done through strong democratic talk,
Doctors for Life puts the question of agenda-setting mainly in the
hands of the legislature. Legislators must facilitate input, according to
the court, only as to controversial questions and only using the means
chosen by the legislators. The decision does not demand, as may be
54
true in a strong democracy, the reconsideration of basic substantive
premises concerning, for example, the structure of government and
the nature of fundamental rights. Under the decision, the process may
be as limited as the legislature inviting input from the public, but the
Court encourages legislators to go further. Among the means
identified by the Court are educating the public about controversial
topics, soliciting views from affected groups, seeking both oral and
written submissions, and holding hearings around the country. A
reader of Habermas would find these techniques for democratic
participation quite familiar, although Habermas would surely
encourage the legislature to go further along the road to greater
social learning, with its concomitant political activity.55
The process of social inquiry which creates social learning
includes four aspects: discourse among the actors must create inter-
subjective meaning and express shared understanding, “discussion
must create and authenticate ‘true’ statements of conditions,” a
“deliberative process must establish the moral and ethical basis for
52. See generally id. at 26-31.

53. Id. at 104-05.
54. See Frank Michelman, Democracy & Positive Liberty, BOSTON REV., Oct./Nov. 1996, at
3, reprinted in CONSTITUTIONALISM & DEMOCRACY 287 (R. Bellamy, ed. 2006).
55. See Shannon, supra note 50, at 432.
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
normative claims of value, priority, and significance,” and the

“process of participation must ensure the authenticity of the
56
participants.” When the process of social inquiry is successful,
“when multiple stakeholders bring together their knowledge,
experiences, perspectives, values and capacities in a communicative
process of critical reflection and civic science as a means of jointly
understanding and addressing shared challenges and potential
57
options,” it leads to social learning.
As opposed to a purely representative democracy, either a strong
or a dialogic democratic process could produce some important social
and political forces in South Africa as well as in the United States. As
the Court in Doctors for Life posits, the relationship between
legislators and citizens changes when legislators have a duty to
facilitate input into the legislative process. Legislators are
demonstrating respect for citizens when they ask their opinion, and
citizens then learn that their opinions are valued. Their input may
also change legislation for the better, but that is not the whole point.
As participatory democratic theoreticians argue, what is “better”
cannot be objectively determined. What one seeks through the
participatory process is social learning, in which the realities that each
participant brings to the table are revealed and discussed and the
outcomes are negotiated. There is no one best outcome; instead,
there is a respectful communicative process that leads to the
identification of outcomes that participants design and can live with.58
Communication is a two-way street. In a participatory
democracy, as opposed to a representative democracy, legislators
must come face-to-face with those who are affected by their decisions,
and they must ask them for their opinion. Legislators may reject those
opinions, but they cannot do so without having exposed themselves to
the arguments, the feelings, and the insights of those who are affected
by the decision. For this reason, Barber claims that strong democracy
56. Id.
57. Id.
58. See YASH GHAI & GUIDO GALLI, INTERNATIONAL INSTITUTE FOR DEMOCRACY AND
ELECTORAL ASSISTANCE, CONSTITUTION BUILDING PROCESSES AND DEMOCRATIZATION 14-
15 (2006) (arguing that public participation can help create a more tolerant and democratic
society); see Jim Rossi, Participation Run Amok: The Costs of Mass Participation for
Deliberative Agency Decisionmaking, 92 NW. U. L. REV. 173, 196-206 (1997) (stating that to be
legitimate, decisionmaking must allow some degree of nonexpert participation, and arguing that
civic virtue is necessary for a deliberative democracy).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
“can assure sufficient equality and justice to coexist with a variety of

59
economic systems.”
Another feature of participatory democracy is that it works best
when the scale is small enough for people to hear and be heard by
others. Doctors for Life advances this aspect of participatory
democracy by stressing that legislators should seek input at the
provincial level, not just at the national level. Provinces are still rather
populous for direct democracy, however. The possible antidote
suggested by Doctors for Life is to focus on groups of interested
people, rather than solely on individuals. Gathering people together
to form groups that formulate authentic positions through dialogue is
at the heart of dialogic democracy as described by Habermas. These
groups can then engage with one another to negotiate for solutions
that represent the collaboration of the individuals and the groups.
Since the Doctors for Life judgment requires legislators to
consider consulting with groups, it provides an incentive for civil
society to develop and sustain itself in the hope that groups will have
influence, especially between elections. The judgment in Doctors for
Life, possibly provides an incentive for government to assist groups to
develop, that is, to help people who will be affected by controversial
legislation to find each other and engage in the kinds of democratic
talk that allows them to identify solutions they can live with and
advocate for. According to participatory democracy theoreticians,
authentic participation does not occur when a government agency
suggests a solution to a problem and then invites input from affected
60
people. This is the process most familiar from administrative rule-
making in the United States. What is missing from this process is the
opportunity for people to talk through the problem, rather than just
respond to a possible solution or group of solutions.61 Interestingly, in
the environmental arena, some agencies in the U.S. and elsewhere
have experimented with a more open and interactive process,
including aiding groups to come together and providing them with
62
access to experts. Doctors for Life does not require that legislators
59. BARBER, supra note 47, at xii.

60. Shannon, supra note 50, at 432.
61. Cf. Peter Shane, Turning GOLD into EPG: Lessons from Low-Tech Democratic
Experimentalism for Electronic Rulemaking and Other Ventures in Cyberdemocracy, 1 ISJLP
147 (2005) (reviewing DEEPENING DEMOCRACY: INSTITUTIONAL INNOVATIONS IN
EMPOWERED PARTICIPATORY GOVERNANCE (Archon Fung & Eric Olin Wright eds., 2003).
62. See generally Rena I. Steinzor, Reinventing Environmental Regulation: The Dangerous
Journey from Command to Self-Control, 22 HARV. ENVTL. L. REV. 103 (1998) (discussing
experiments in pollution controls).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
undertake such an extensive and expensive process, but it suggests

that the process is worthwhile for the legislature to consider.
Another aspect of administrative rulemaking in the U.S. and
South Africa is that the decisionmaker is required to consider
comments that are filed and make some response to them before the
63
rule is finalized. Doctors for Life does not require legislators to
respond to input. It may be difficult, however, for legislators to listen
to people as the decision requires and not take their views into
account, at least to some degree. By listening, legislators may learn
about the lives of people different from themselves. They may open
the door to understanding and empathy. Also, those who share their
views may, quite reasonably, expect their views to make a difference,
and they may hold accountable a legislator who ignores them.
Bohman argues that for the adoption of laws, democratic values
in a pluralist society are satisfied if three criteria are met. First, the
laws must “result from a fair and open participatory process in which
64
all publicly available reasons have been respected.” Second, “the
outcome is such that citizens may continue to cooperate in
65
deliberation rather than merely comply.” And, third, “the source of
sovereign power” is “the public deliberation of the majority.”66 In
other words, in a pluralist society, not everyone will be happy with the
outcome of a deliberative process, but everyone should be happy
enough with the process to have an incentive to continue to try. By
requiring legislators to openly solicit input, the Court in Doctors for
Life in effect challenges legislators to take into account Bohman’s
criteria, particularly the second one. Once they have invited input,
legislators cannot avoid the task of being accountable to those who go
to the trouble of giving input. Bohman suggests that accountability is
achievable without agreement so long as those who give input can be
persuaded that they should continue to do so regardless of whether
the outcome tracks their opinion.67 This requires that legislators act
respectfully during hearings, make themselves open to changing their
63. See 5 U.S.C. § 553 (2000); Lloyd Noland Hosp. & Clinic v. Heckler, 762 F.2d 1561, 1565
(11th Cir. 1985); see also 1 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 7.1
(4th ed. 2002); Tracy-Lynn Field, Public Participation in Environmental Decision-Making:
Earthlife Africa (Cape Town) v. Director-General: Department of Environmental Affairs and
Tourism, 122 S. AFR. L.J. 4, 748, 757 (2005).
64. JAMES BOHMAN, PUBLIC DELIBERATION: PLURALISM, COMPLEXITY, AND
DEMOCRACY 187 (1996).
65. Id.
66. Id.
67. See id. at 55 (stating that public deliberation requires a plural accountability).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
minds, and be prepared to justify their decisions in the same fair and
open participatory process.
A criticism of participatory democracy is that it allows the
majority to overwhelm minorities while, at the same time, does not
68
affirm the unchangeable character of certain core values. Doctors for
Life does not go that far down the route toward participatory
democracy because of its insistence that, whatever participation the
legislature must facilitate, the process is part and parcel of the
representative democracy and the unwavering values embodied in the
South African Constitution. Indeed, Doctors for Life probably serves
to enhance the power of minorities, rather than the majority, because
it provides for specific spaces in which the voices of those affected by
the legislature must be heard. The plaintiffs in Doctors for Life itself
are a good example – a group of advocates opposed to broad access
to abortion is not, in South Africa, a widely popular organization, but,
under the decision, legislators are required to listen to their views.
A second criticism of participatory democracy is that it does
nothing to counteract the silencing of groups historically silenced in
69
society. In part for that reason, Iris Marion Young recommends
renaming deliberative democracy “communicative democracy.”70 She
posits that the argumentative norms of discourse sometimes advanced
by advocates of deliberative democracy privilege speakers who enjoy
political and economic advantage and devalue the speech of others.
Communicative democracy, on the other hand, “attends to social
difference, to the way that power sometimes enters speech itself,
recognizes the cultural specificity of deliberative practices and
proposes a more inclusive model of communication.”71 Her more
inclusive model aims, like deliberative democracy, to make room for
people to change their ideas because of their interactions with others,
including others whose experiences and discursive methods are
different from their own. To achieve the goal, she recommends
adopting a discourse that includes narrative, preservation of
differences in respectful exchanges that enhance social knowledge of
68. See Michelman, supra note 54.

69. See IRIS MARION YOUNG, INTERSECTING VOICES: DILEMMAS OF GENDER,
POLITICAL PHILOSOPHY, AND POLICY 60-74 (1997).
70. Id. at 60.
71. Id. at 63.
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
all participants, caring for the participants in the exchange, and strong
72
rhetoric.
In addition to changing the norms of discourse, feminists have
pointed to the experiences of women within families as a source of
their silence in public life. For example, family life historically has
been viewed as a private realm, whereas politics is a public realm.
Feminists have critiqued this division of the public and the private as
a way of validating the absence of women from public life, since
women who can be subject to violence and sexual domination at
home can be viewed as lacking the agency necessary for participation
in the public sphere. Further, women have been tasked with the
responsibility for home while also participating in the paid economy,
73
leaving them little time for participation in political activity.
The judgment in Doctors for Life specifically identifies the
historical silencing of the majority of the country’s residents as one of
the reasons underlying the need to incorporate aspects of
participatory democracy into its representative democracy. People of
color were the principal targets of the system of political and
economic exclusion called apartheid, but white women, and gay men
and lesbians of all colors, suffered some of its impact as well. Many of
the same groups have been the targets of political and economic
74
exclusion in other countries, including the United States. Making
room at the political table for historically silenced groups may be
essential to the functioning of a good government, as the court in
Doctors for Life argues. At the same time, making room is important
72. Id. See generally MARTHA MINOW, MAKING ALL THE DIFFERENCE: INCLUSION,
EXCLUSION, AND AMERICAN LAW (1990); Barbara Bezdek, Silence in the Court: Participation
and Subordination of Poor Tenants’ Voices in Legal Process, 20 HOFSTRA L. REV. 533 (1991-
92).
73. See, e.g., SUSAN MOLLER OKIN, JUSTICE, GENDER, AND THE FAMILY 110-33 (1989);
CAROLE PATEMAN, THE DISORDER OF WOMEN: DEMOCRACY, FEMINISM AND POLITICAL
THEORY 118-40 (1989).
74. See, e.g., PATEMAN, supra note 73; Mary G. Dietz, Hannah Arendt and Feminist
Politics, in FEMINIST INTERPRETATIONS AND POLITICAL THEORY 232-52 (Mary Lyndon
Shanley & Carole Pateman eds., 1991); Evans v. Romer, 882 P.2d 1335 (Colo. 1994)
(overturning referendum adopted by state’s voters that prohibited legislature from adopting
measures to protect people from discrimination on the basis of sexual orientation as a denial of
the fundamental right to participate equally in the political process), upheld on different
grounds, 517 U.S. 620 (1996). Compare Lynn A. Baker, Direct Democracy and Discrimination:
A Public Choice Perspective, 67 CHI.-KENT L. REV. 707 (1991) (rejecting the claim that laws
created by referenda are more likely to produce discrimination than laws created by elected
officials) with Derrick A. Bell, Jr., The Referendum: Democracy’s Barrier to Racial Equality, 54
WASH. L. REV. 1 (1978-79) (suggesting the trend towards using referenda to create laws
promotes racial inequality).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
for the members of these historically silenced groups as well, another

point raised by the court in Doctors for Life. Many feminists have
focused on the liberating value for women of coming together in
groups and argued that feminist method must include collectively
75
respectful encounters.
Whether historically silenced groups will find room for political
participation and influence because of Doctors for Life is uncertain.
Making that happen will require legislators to take the mandate
seriously and reach out to groups affected by proposed controversial
legislation. It will also require members of those groups to find reason
to trust the process and agree to participate. If legislators reach out,
and if they attend respectfully to the input they receive, the decision
could increase the incentives and opportunities for historically
silenced people to come together, collaboratively determine their
views and position and share them with legislators. If, on the other
hand, legislators do not take the mandate seriously, will women and
other members of disadvantaged groups be worse off? The answer to
that question depends, of course, on the nature of the controversies in
which Doctors for Life should have an impact and on the differences
between the limited deliberative democratic participation envisioned
by the Doctors for Life court and the more limited practice of
representative democracy.
An additional criticism of deliberative democracy is that it
76
contributes little to the achievement of economic justice. Cass
Sunstein has argued that assuming the absence of a relationship
between civil rights and economic rights is a “large error.”77 He points
to the Amartya Sens’ finding that famine does not occur in a society
with political safeguards against tyranny, because a government with
an incentive to listen to its citizens is more likely to adopt pro-social
welfare policies. At the same time, Sunstein cautions, a democratic
system may insulate great wealth by allowing wealthy citizens to, in
75. Dietz, supra note 74; OKIN, supra note 73, at 124-33; Katharine T. Bartlett, Feminist
Legal Methods, 103 HARV. L. REV. 829 (1989-90). Cf. Sherrilyn A. Ifill, Creating a Truth and
Reconciliation Commission for Lynching, 21 LAW & INEQ. 263 (2003).
76. The notion that deliberative democracy can contribute to the achievement of social
rights is not self-evident, but some commentators point to a connection, particularly in the need
to “integrate groups that were improperly marginalized by the political system.” See Roberto
Gargarella, Should Deliberative Democrats Defend the Judicial Enforcement of Social Rights?,
in DELIBERATIVE DEMOCRACY AND ITS DISCONTENTS 244-51 (Samantha Besson & José Luis
Martí eds., 2006).
77. CASS R. SUNSTEIN, THE SECOND BILL OF RIGHTS: FDR’S UNFINISHED REVOLUTION
AND WHY WE NEED IT MORE THAN EVER 184 (2004).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
effect, buy greater access to decisionmakers. Avoiding that result

requires, at least, capacity building so that citizens are adequately
78
educated and enjoy some modest degree of economic security.
A more extended consideration of the relationship between
public participation and economic justice is offered by James
79
Bohman, who argues that, since democratic deliberation is
incompatible with persistent inequality, “the norm of political
equality in deliberation serves as a critical standard of democratic
legitimacy.”80 In his view, “persistent inequalities of race, class, and
gender are not merely the results of the unequal distribution of
resources; they are also due to the lack of social agency by these
groups in relation to the goals and interests of others.”81 Ignored as
agents in the public debate, the interests and needs of these groups
are also ignored. The solution is not solely economic, therefore; it also
requires that government ensure that a threshold of resources and
capacities are provided to each citizen so that he or she is not ignored
and can make his or her public reasons convincing to others.82
Guaranteeing the capacity of individual citizens to participate
does not guarantee positive results in terms of economic justice, but it
opens the door for individuals to make the connections with others
that are necessary to achieve common goals. Acknowledging the
necessity of collective action, Bohman asserts that government may
have a role in developing opportunities for collectivities to organize
83
and make their views a part of the public debate. Interestingly, the
judgment in Doctors for Life asks the government to consider, at
least, whether it must provide funding and other resources to groups
to assist them in providing input on relevant legislation. Assuming the
answer is positive, these groups will have much more potential for
advancing their claims to economic, social and cultural rights. While
Doctors for Life does not demand this, it seems obvious that, if the
process of facilitating input is to be meaningful over time,
government must assist people with similar issues and problems to
come together to advocate for their views and to make their needs
known to legislators. This must occur not just when an election occurs
but frequently over the course of the life of the parliament. The
78. Id. at 184-85.

79. BOHMAN, supra note 66.
80. Id. at 125.
81. Id. at 130.
82. See id. at 131.
83. See id. at 141.
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
process may increase the capacity of groups in civil society who face
84
some of the greatest economic, social and cultural disadvantage. It
may give members of this group reasons to see themselves as citizens
and to develop the skills and self-respect necessary for fuller
participation in society. Developing civil society in this way can be
seen as a type of capacity building that is as important in the long run
as other forms of capacity building advocated by Sunstein.
Another reason to think that the judgment in Doctors for Life is
not unrelated to the achievement of social and economic rights is that
the South African Constitution, unlike the constitutions of most
countries, protects social and economic rights and makes them
judicially enforceable.85 When social and economic rights are not
justiciable, courts have little incentive to be concerned with whether
the legislative process is open to hearing claims from disadvantaged
groups about their needs for economic and social justice. Where the
court is an alternative forum for the achievement of economic and
social justice, however, it is in the best interests of judges for the
legislature to be seen as an appropriate and responsive institution for
such claims. With its judgment in Doctors for Life, the South African
Constitutional Court could be seen as encouraging Parliament to
become more open and responsive to claims for economic and social
justice and to relieve the Court of having to take on the primary role.
As the South African Constitutional Court has seen, tasking courts
with enforcing social and economic rights is tricky; for example, the
South African Constitutional Court lacks the power to appropriate
funds and create organizations to implement its judgments.86 The
84. An important example of the government assisting the development of civil society
occurred during the War on Poverty in the United States in the latter part of the 1960s, when
the Office of Economic Opportunity devoted resources to help communities create and sustain
local advocacy and service organizations. These organizations included welfare rights groups,
which were successful, for a time, in expanding access by low-income women to public benefits.
See FELICIA KORNBLUH, THE BATTLE FOR WELFARE RIGHTS: POLITICS AND POVERTY IN
MODERN AMERICA 33-36 (2006).
85. See generally Balakrishnan Rajagopal, Pro-Human Rights but Anti-Poor? A Critical
Evaluation of the Indian Supreme Court from a Social Movement Perspective, 8 HUM. RTS. REV.
157 (2007) (discussing judicial practice in India and comparing it to other countries); Robin
West, Katrina, The Constitution, and the Legal Question Doctrine, 81 CHI.-KENT L. REV. 1127
(2006) (discussing Constitutional jurisprudence in the United States).
86. Taunya Lovell Banks, Balancing Competing Individual Constitutional Rights: Raising
Some Questions, in LAW AND RIGHTS: GLOBAL PERSPECTIVES ON CONSTITUTIONALISM AND
GOVERNANCE 27, 37 (Penelope E. Andrews & Susan Brazilli eds., 2008) (“[T]he Constitutional
Court’s approach to the enforcement of socio-economic rights is cautious and largely declarative
rather than transformative.”); Dennis Davis, Adjudicating the Socio-Economic Rights in the
South African Constitution: Toward “Deference Lite?”, 22 S. AFR. J. HUM. RTS. 301 (2006).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
same lack of institutional capacity is viewed by many countries as

exactly the reason not to make social and economic rights judicially
87
enforceable. With Doctors for Life, the Constitutional Court may
have begun to explore a middle ground: remaining open to
adjudicating social and economic rights claims while simultaneously
articulating how the legislature can do a better job of addressing the
same rights.88
IV. CASE STUDIES FROM THE UNITED STATES OF

AMERICA AND SOUTH AFRICA
A. Case Study – South Africa

In Doctors for Life, the Court acknowledged the existence of,
and affirmed the benefits of, the notion of public participation
through many forums and at different times. However, the Court
recognized that there is a problem in the legislative process, and that
this was not the first case that raised the issue of an omission to
facilitate public participation by the legislature.89 But this was the first
case that led to the striking down of legislation due to the failure to
facilitate public participation.
Since its inception, the post-apartheid Parliament has faced
criticisms about its public participation processes. Some of the
criticisms include the inaccessibility of Parliament for people who do
not live in the city where it is situated, the lack of adequate public
information, the short time-frames for public inputs in many
instances, the lack of responsiveness of the legislature to inputs, and
the lack of consultation at the provincial and local levels. Peter
Kimemia, in a recent critique of public participation in South Africa,
87. See generally Rajagopal, supra note 85 (discussing judicial practice in India and
comparing it to other countries).
88. An important critique of deliberative democracy is that, as deliberative processes
increase, the speed of legislative process and the power of experts to decide policy both decline.
The question is whether the tradeoff is worthwhile. One part of the response is that the answer
to the question is political, not empirical. What the Doctors for Life Court assumes, it appears,
is that the political claim was decided in favor of deliberation when the constitution was
adopted. It is hard to make same claim, of course, based on the language of the US
Constitution. At the same time, given how slowly important legislation has moved through
Congress in recent years despite the absence of a mandatory process for public input, the
efficiency claims may not be empirically accurate even if the writers of the US Constitution
were satisfied as a political matter with representative democracy.
89. Doctors for Life Int’l v the Speaker of the Nat’l Assembly & Others 2006 (12) BCLR
1399 (CC) at 36-37 (S. Afr.).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
argues that what passes as a participatory process can be described as

manipulation, tokenism and a “crafty means by which to dispense
with this rather irritating and tedious process of facilitating public
participation in governance practice.”90 Themba Fosi, an employee of
the Department of Provincial and Local Government, has
acknowledged that, despite efforts at facilitating participation, the
actual process has led to minimal participation by the public. Included
amongst the challenges he identifies is the fact that “the spaces and in
some cases the means provided to facilitate public participation are
fraught with flaws that effectively swell the potential for failure.”91
The comments above indicate that the constitutional inclusion of
a mandatory duty to facilitate public participation has led to
implementation challenges within all spheres of government.
Fortunately for South Africa, the Chapter 9 institutions also have a
role to play in strengthening democracy, through, amongst other
means, the facilitation of public participation in the legislative
process. As discussed above, the CGE and the SAHRC both have
Parliamentary Offices which undertake this task. Both institutions
have faced internal and external challenges and criticisms in
interpreting and implementing their mandates in this regard.
Nevertheless, these institutions have a crucial role to play, for several
reasons: they have the means to provide a forum for public education,
they are able to facilitate public participation, and they can mediate
easier access to the relevant legislative structures and individuals for
civil society actors. These institutions also have offices in all provinces
and are generally more accessible to the public. The case study below
seeks to illustrate one successful attempt at facilitating public
participation by a Chapter 9 institution. Despite the intervention
taking place prior to the judgement in Doctors for Life, the
methodology employed resonates with the views of the Court on what
the Legislature ought to have done in fulfilling its mandate.
This case study reflects the legislative intervention process
undertaken by the South African Human Rights Commission
(SAHRC) on legislation relating to older persons known as the Older
Persons Bill.92 The SAHRC has acknowledged that this is the first
90. Peter Kimenia, South Africa: Public Participation – Need for a Re-definition, LOC.
GOV’T TRANSFORMER, Oct./Nov. 2007, available at http://www.africafiles.org/article.asp?ID=1
6327. See generally Parliamentary statements and Annual Reports of the Commission for
Gender Equality, www.cge.org.za.
91. Kimenia, supra note 90.
92. Older Persons Bill, 2003, Bill B68B-2003 (GA).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
time that they have consulted so extensively on a piece of legislation.93

In fulfilling its constitutional mandate, the SAHRC in this instance
recognised that the older persons sector is organisationally weak, that
older persons lacked resources such as access to information, forums
and funding, that there was no national structure or advocacy group
to take up the broader systemic concerns of older persons, and that
older persons are autonomous individuals and that their participation
is crucial in all matters concerning their group. This latter provision is
prescribed in terms of the United Nations Principles for Older
Persons and also the Madrid Program of Action on Aging. Hence, in
line with both their constitutional mandate and also international
instruments, the SAHRC embarked on an in-depth process in
relation to the Older Persons Bill. The other reason for embarking on
such an in-depth process was based on institutional concerns relating
to the limitations in the Bill, including the lack of a developmental
approach. The focus of the Bill was on facilities for older persons as
opposed to a holistic focus on the numerous concerns facing older
people living in communities and families.
The SAHRC intervention started in 2001 when general
consultations began taking place with various NGOs. A pilot
workshop was held in 2003, followed thereafter by workshops
throughout the country between 2003 and 2005. A special focus in this
respect was to include rural communities in the consultation process.
The number of participants in workshops ranged from 18 to 80 and
included representatives from organisations, municipalities,
traditional leaders, NGOs, activists, academics, policymakers, church
groups, and homes for older persons. The workshops had two
purposes: to empower older persons with knowledge about
Parliamentary processes both at the national and the provincial levels
and to share information on the draft law and elicit participants’
views on that law. Because this latter process would serve to inform
the SAHRC’s submission to Parliament, the workshop programmes
included information on how laws are made, how to write and present
submissions to the legislature, background information on and
provisions contained in the draft Bill, the applicable human rights and
international law aspects on the rights of older persons, and the
sharing of information on positive changes in South Africa since 1994.
The workshops also elicited information from participants on the
93. See Older Persons Bill: Hearing on B68B-2003 Before the Portfolio Comm. On Social
Development, 1 (2005) (Oral Submission of S. Afr. Human Rights Comm’n).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
current challenges facing older persons. These challenges included

pension issues, health issues, HIV/AIDS, accommodation and care
issues, and abuse and neglect issues. During these workshops, the
SAHRC received repeated requests from participants for assistance
94
in setting up a national older persons’ forum.
In addition to the workshops, the Parliamentary Office of the
SAHRC also held a series of brainstorming sessions with a smaller
group of people. The objective of these sessions was to have more in-
depth discussions on specific aspects of the Bill. These sessions
consisted of between 8 and 15 people and dealt with both the
substance of the draft Bill and law-making processes. Experts were
also invited to present short inputs on both the Bill and share
successful advocacy strategies. A workshop was held on public
participation in the legislative process, and sessions included input on
developing advocacy and submission writing skills. All discussions
were recorded and the notes were widely distributed to relevant role-
players. The Parliamentary Office also established the Rights of
Older Persons Working Group, which was an email information
service for relevant role-players and served as an information
clearing-house on the progress of the Bill. Individuals and
communities were encouraged, through all these processes, to
95
participate in the parliamentary process.
At a national conference on older persons which was held in
2005, a discussion was held on the need for a national structure that
would represent the diverse needs and interests of older persons. The
SAHRC agreed to set up (internally) an Older Persons Unit to assist
the older persons sector in creating a national forum within a year. It
provided assistance with fund-raising, as well as administrative
support. The objective of the Older Persons National Forum is to act
as a civil society advocacy and advisory group that works to promote
the rights of older persons.
In August 2005, Parliament held extensive public hearings on the
Older Persons Bill. As a result of the submissions received, the
Parliamentary Committee sent the Bill back to the drafters, with an
instruction to re-draft the Bill, taking into account the concerns
raised. After the re-drafted Bill was submitted to Parliament, the
SAHRC was asked to bring any further concerns to the attention of
94. South African Human Rights Commission [SAHRC], Case Study - The Older Persons
Bill 10 (undated & unpublished document, on file with authors).
95. Id.
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
the Parliamentary Committee. A one-day workshop was convened in

January 2006 by the Parliamentary Office to gather any outstanding
concerns, and the report from this workshop was submitted to
Parliament. The Parliamentary Office also attended and monitored
all the Parliamentary Committee meetings and sent out reports to
relevant role-players. This was a valuable initiative, as it greatly
assisted civil society to stay informed and to actively participate both
96
directly and indirectly, on issues that concerned them.
Included in the successes achieved by this new mode of
Parliamentary intervention by the SAHRC were the following:
a) The SAHRC received over 300 written and oral
submissions in all these interventions, from both individuals
and groups/organisations. These submissions were used to
inform the SAHRC’s official submission to Parliament.
b) The process also led to a working relationship with the
relevant government department dealing with the draft Bill
and the provision of direct inputs to the drafters.
c) The SAHRC estimates that 90% of all oral submissions
presented in Parliament were by persons and organisations
97
that had participated in their various activities listed above.
d) In terms of substance, the structure of the Bill was
changed to shift the focus from institutional care to a more
developmental focus, including new provisions addressing the
issue of elder abuse. The law was passed in December of
2006.
e) The intervention had an invaluable impact in terms of
building coalitions and community solidarity in the mission to
98
protect the rights of a vulnerable constituency.
The above case study illustrates both an effective methodology in
facilitating public participation as well as a powerful vehicle that can
work in tandem with the legislature to fulfil this constitutional
obligation. In a country with competing demands and limited
resources, the Chapter 9 institutions are ideally situated to
supplement and compliment the role of the legislature in facilitating
public participation, thereby fulfilling a constitutional imperative.
B. Case Study—United States of America

An example from the United States may shed some light on the
differences between the ordinary legislative process in the US and
96. Id.
97. Id.
98. Id.
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
what might occur if the legislative practices mandated in Doctors for

Life were adopted. In the example, one of the authors of this article
unsuccessfully attempted to persuade a local legislator to change a
social welfare policy affecting low-income individuals and families.
In Montgomery County, Maryland, some low-income parents
can qualify for a child care subsidy to assist them in purchasing child
care while they are at work. Only single-parent households are
eligible. In addition to financial eligibility, each applicant parent is
required either to have a judicial child support order or to undertake
the process of suing the nonresidential parent for child support.99
In 2003, when the county was considering an ordinance to renew
the program, I contacted one of the county’s council members to
advocate for eliminating the child support requirement. According to
the council member and members of the council staff, the
requirement is imposed in the interest of serving more families. The
amount of the subsidy that each family receives varies according to
the family’s income. If one family has more income, the family’s
subsidy can be less and the excess money can be used for a second
family. Child support can be included as a source of income for the
recipient family. In terms of horizontal equity, enhancing the income
100
of some families helps more families receive subsidies.
Nonetheless, whether more families would actually be served
because of the child support requirement is unclear because the
nonresident fathers of children in the care of low-income custodial
mothers tend to not have substantial resources from which child
support can be paid. As a result, child support actually collected
under court orders may not raise the household incomes of a
sufficient number of households to make a difference in terms of
101
subsidy money for other households.
99. MONTGOMERY, MD. CODE § 02.42A.06 (2008).

100. The horizontal equity argument has some appeal since more families apply for the
program than the funding can serve. In 2007, more than $11,000,000 was budgeted for the
program to serve approximately 1800 children. MONTGOMERY COUNTY, MD., OFFICE OF
MANAGEMENT AND BUDGET, COUNTY EXECUTIVE’S RECOMMENDED FY09 OPERATING
BUDGET AND PUBLIC SERVICES PROGRAM 53-3 (2008). Only three years earlier, the program
had 179 families with 268 families on a waiting list. DEP’T OF HEALTH AND HUM. SERVS.,
MONTGOMERY COUNTY, MD., CHILD CARE SUBSIDY PROGRAMS COMMUNITY REVIEW
(2004), available at http://www.montgomerycountymd.gov/content/hhs/ACS/Documents/childca
resubsfinalreport.doc.
101. See, e.g., Karen Syma Czapanskiy, ALI Child Support Principles: A Lesson In Public
Policy and Truth-Telling, 8 DUKE J. GENDER L. & POL’Y 259, 265-66 (2001); Daniel L. Hatcher,
Child Support Harming Children: Subordinating the Best Interests of Children to the Fiscal
Interests of the State, 42 WAKE FOREST L. REV. 1029, 1073-74 (2007) (arguing that
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
Many, perhaps most, custodial parents have no problem with the

child support cooperation requirement, at least on a theoretical level.
Along with some commentators, many parents believe that
establishing the paternity of a child’s nonmarital father and requiring
a formal child support order is good for the child as well as the
parent.102 Some custodial parents, however, have concluded that
obtaining child support from the nonresident parent is a bad idea,
even though any child support actually paid would relieve some of the
custodial parent’s financial burden. Some custodial parents are afraid
that the nonresidential parent will threaten the child or the parent,
103
either physically or emotionally, or counterclaim for custody. Other
parents are receiving some informal support, at least on an occasional
basis, either from the nonresidential parent or that parent’s family,
which may stop when judicial proceedings begin.104 Furthermore, the
judicial process is time-consuming and conflicts, in many cases, with
employment. Finally, many nonresidential parents are as poor as the
custodial parent. Getting a judicial order, therefore, offers no promise
of money reaching the custodial parent.105
The county council member seemed unaware of how the
requirement impinged on the life and the autonomy of custodial
parents, a life he had never shared. Persuaded by the horizontal
equity argument, he was willing to consider changing the requirement
only if affected parents could persuade him that it was burdensome to
them. He suggested I find affected parents and bring them in to speak
with him or to testify at a hearing.
The council member’s suggestion is not unreasonable in theory,
but it makes little sense in the context of a child care subsidy program
administrative costs substantially reduce any benefit from child support); Chien-Chung Huang,
Ronald Mincy, Ronald & Irwin Garfinkel, Child Support Obligation of Low Income Fathers, 67
J. MARR. & FAM. 1213 (2005).
102. See Nancy E. Dowd, Parentage at Birth: Birthfathers and Social Fatherhood, 14 WM. &
MARY BILL RTS. J. 909 (2006); Memorandum from Paula Roberts, Ctr. For Law & Soc. Policy,
to Interested People, Preliminary Analysis of Child Care Support Cooperation as a Condition of
Eligibility for Subsidized Child Care (Nov. 19, 2004), available at http://www.clasp.org/publicatio
ns/cs_cc_subsidy.pdf (reviewing pros and cons of imposing requirement).
103. Having been involved in representing women who had been battered by partners, I
knew this was not a purely theoretical concern. It finds support in the scholarly literature. See
SHARON HAYS, FLAT BROKE WITH CHILDREN: WOMEN IN THE AGE OF WELFARE REFORM
82-83 (2003); Karen Syma Czapanskiy, Domestic Violence and the Maryland Family Violence
Option, 11 AM. U. J. GENDER SOC. POL’Y & L. 447 (2003); Susan Notar & Sharon Turetsky,
Models for Safe Child Support Enforcement, 8 AM. U. J. GENDER SOC. POL’Y. & L. 657 (2000).
104. HAYS, supra note 103, at 80-81.
105. See Czapanskiy, supra note 101.
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
or many other public benefits programs.106 Because public benefits

records are kept private to protect applicants and recipients from
stigma, I had no access to the names of or contact information for
applicants who were refused benefits. A student helped find several
parents in the waiting room of the office, and we provided their
statements to the council member. Given that each was a busy low-
income woman supporting a family, none was able to take time from
work and family to speak personally with a county council member
who had never listened to her before. Of course, an organization of
low-income women could have advocated on their behalf, but,
probably for all the same reasons that low-income women historically
have had little voice in public debates, such organizations do not seem
to exist in this locale.
Under the mandate of Doctors for Life, the county council might
have been required to solicit the opinions of people who are
financially eligible for the child care subsidy. Alternatively, an
intermediating institution, such as a women’s commission, might have
been asked to investigate the issue from the perspective of financially
eligible parents. The government agency that administers the
program could have been directed to identify applicants for and
participants in the program, so that legislators or the intermediating
institution could seek their input. If stigma were an important issue,
the intermediating institution might have sought input without
identifying low-income parents in public, while still allowing their
opinions to be heard. The agency might have also been required to
advise participants about the interest of the legislature because of the
requirement. When we asked the agency to make our interest as
advocates known to participants, the director turned us down, which
106. Another advocacy project I was involved with around the same time involved
extending unemployment insurance benefits (UIB) to part-time workers on the same basis as
provided for fulltime workers. Finding people denied UIB was even more difficult than finding
disappointed applicants for the child care subsidy program. Applications were taken only over
the phone, and applicants were required to work through a telephone decision tree before
speaking with a claims representative. The decision tree was unambiguous when it comes to
benefits for part-time workers. Applicants were told that they are ineligible for benefits, and
they were provided with no opportunity to contest the decision. They are not connected with a
claims representative to talk over the issue, and they are not provided with a denial letter.
Because they were never informed that the question might be decided differently if the law
were changed (or, in a few cases, if they come within one of the exceptions to the exclusion),
they had no incentive to create or even contact a legal or advocacy group. From the perspective
of the unemployed worker, it must have appeared that their exclusion was inevitable and
unquestionable.
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
was a sensible response given that no council member was demanding

a different outcome.
It is not impossible to imagine the Doctors for Life requirements
being handled, at a preliminary level at least, by an administrative
agency. Unexpectedly, that turned out to be one of the lessons that
can be drawn from the child care subsidy example. A year after my
failed advocacy effort, the agency conducted an internal audit of the
107
child care subsidy program. The audit included interviews with a
number of program participants. They were asked questions about
the operation of the program, but they were not asked to give their
opinion on whether the program’s requirements made sense to them.
Program participants were interviewed individually, giving them no
opportunity to gain an understanding of how others experienced the
program.108
What is interesting is that, despite these limitations, the largely
positive audit made reference to problems with the child support
requirement. Because of the requirement and the lack of close
connections with the people administering the child support program,
applications for the child care subsidy were sometimes delayed or
made more complex. Talking with participants, then, even in the
limited manner done here, uncovered problems. Unfortunately, the
audit did not lead to a reconsideration of the requirement.
One thing seems clear from this example: without some mandate
to take into account the views of people who experience some form of
disadvantage in the political system, legislators are likely to accept as
valid the views of those who share their perspectives. The county
council member, while not an unreasonable or unsympathetic person,
was willing, without much curiosity or even imagination, to discount
arguments about the unsuitability of the requirement for purported
beneficiaries of the benefit. The people whose views did not count in
the conversation were members of disadvantaged groups: most are
female and all are low-income.
107. DEP’T OF HEALTH AND HUM. SERVS., supra note 100.

108. Id. at 3. Cf. YOUNG, supra note 69, at 60-74 (discussing deliberative democracy as an
example of social learning happening in conversation with others who share the experience);
Shannon, supra note 50 (discussing political participation as a method of social learning
happening in conversation with others who share the experience).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
C. Reflections on the case studies from South Africa and the United
States of America
The process leading to the adoption of the Older Persons Bill
contrasts rather sharply with the US experience. In both countries,
the proposed legislation primarily affected people with few economic
resources. The South African legislation addressed a large number of
issues affecting an important group of people in the population, which
helps to explain the significant amount of consideration it was given
by the executive department, the SAHRC and advocacy groups. The
US example involved modest changes to an existing program, which
helps to explain why the attention paid to the proposal was not
substantial. In both countries, however, the judgment in Doctors for
Life would have made a difference in the process and in the outcome.
In South Africa, the adoption of a more expansive and
consultative process by the SAHRC reflected a shift in the
methodology regarding public participation. As noted above, this was
not due to the judgment in Doctors for Life, but rather to the
identification of problems in the draft law and also the recognition
that the older persons sector was not sufficiently well-organized to
make an impact on its own. The judgment in Doctors for Life
confirmed that the nature of South Africa’s democracy was
participatory, inclusive and responsive, and that the values of dignity
and respect are engendered by public participation in the law-making
process. Both the imposition of a constitutional mandate to facilitate
public participation, and the creation of constitutional bodies to
strengthen democracy, allow for the realization of deliberative
democracy goals. The existence of a court with the power to oversee
the implementation of the Constitution also assists enormously in this
mission.
In the absence of a judgment such as Doctors for Life, the
Constitutional Court would likely face similar complaints in the
future. The striking down of laws in this case serves to send a stronger
message to the Legislature regarding a violation of its constitutional
mandate. This will hopefully lead to greater awareness and changes in
the Legislature in its future facilitation of public participation. The
judgment also clarified that there is a mandatory duty to facilitate
public participation and that there are two aspects to this duty.
Contextualizing the duty in terms of human rights obligations as well
as historical and contextual approaches is another innovative aspect
of the judgment. The recognition of political citizenship as being
more than just the right to vote shows respect for citizens and allows
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
for the development of a culture of ongoing deliberation amongst

people. It also reflects the principle of government based on the will
of the people. In the absence of the judgment and the SAHRC’s new
approach, the outcome in the ‘Older Persons Bill’ process would have
been different on many levels. The networking and coalition-building
aspects would not have occurred to the same extent in the sector. The
participation of such a diverse group of people who exercised both
agency and their voices (in the SAHRC forums and also in
Parliament) would have been absent. The raising of awareness in
Parliament about the limitations of the draft law also led to changes
to the draft law, to the benefit of a marginalized and vulnerable
sector.
In the United States, there is no constitutionally-based civil right
requiring legislatures to facilitate input from affected members of the
public. Citizens enjoy the freedom to petition the government, and
that freedom has been held to be the basis for protection of certain
109
kinds of political organizing. Congress has the duty to publish its
journal, and, as a matter of accepted historical practice, Congressional
110
sessions and most committee hearings are held in public. Nothing,
however, requires Congress to do more than receive input; it is not
required to seek or to facilitate input.
Another important difference between the normal legislative
process in South Africa and the United States is that Chapter 9
institutions, such as the SAHRC, in South Africa sometimes use their
constitutional mandate to bring advocates, affected groups of people
and government officials together to discuss legislation. Sometimes
these institutions have ongoing relationships with the various players,
and they can use those relationships to engage more fully with them
over a long period of time. Staff members employed by some
congressional committees develop similar relationships over time
with advocates, affected groups and government officials, which helps
the legislators to include a broader set of views in the legislative
process.
Staff members of congressional committees, unlike the members
of the Chapter 9 institutions,111 are chosen and supervised by the
109. See U.S. CONST. amend. I (“Congress shall make no law respecting . . . the right of the
people peaceably to assemble, and to petition the Government for a redress of grievances.”).
110. See AKHIL REED AMAR, AMERICA’S CONSTITUTION: A BIOGRAPHY 82-83 (2005).
111. In terms of section 193 of the RSA Constitution, members of Ch. 9 institutions are
appointed through a public participation process when calls for nominations are made. This is
followed by a Parliamentary process of short-listing, interviews and a voting exercise by both
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
leadership of the committee they serve. They are subject to no

mandate requiring them to pay attention to the views of people or
organizations that are different from the views of the committee’s
legislators. Of course, if a legislator ignores input from people who
disagree with him or her, the legislator may pay the price at election
time. But the process of deliberation between elections, which is the
subject of Doctors for Life, can be ignored.
As discussed earlier, practices that fall within the broad ambit of
deliberative or communicative democracy can have a substantial
positive impact on a society in which they are practiced. They can
bring people together to articulate, discuss and compare their
experiences and views. They can help people develop self-respect for
themselves as citizens and respect and empathy for others in the
society. They can encourage the development of civil society which
then serves to limit government intrusiveness. They can add to the
incentives for government to find solutions to economic and social
inequalities and injustices.
One of the goals of deliberative democracy, in a political sense, is
“illuminating conflicts, including conflicts in material self-interest that
might previously have been obscured.”112 Unless the door is pried
open for people, the illumination cannot occur. Doctors for Life
offers that possibility by requiring legislators to seek input. Although
it does not guarantee that any conflict will be resolved differently, the
decision makes it harder for legislators to argue that opposing
viewpoints do not exist and do not merit some reply.
Doctors for Life offers another potential benefit: the chance for
people to organize around an issue of importance in their lives.
Under the mandate, legislators are instructed to reach out to groups
of affected people. What if no groups exist? It may be necessary for
legislators to provide educational opportunities for people to learn
about the policies under consideration and to give people the
opportunity to debate among themselves which policies they prefer.
This process can produce a chance for organization around common
interests and connections among people with existing organizations.
Once organizations develop in civil society that include people who
have been marginalized in the political system, it is harder for the
Houses of Parliament. The names of nominees are then submitted to the State President for
assent and appointment.
112. Jane Mansbridge, Conflict and Self-Interest in Deliberation, in DELIBERATIVE
DEMOCRACY AND ITS DISCONTENTS 107, 128 (Samantha Besson & José Luis Martí eds., 2006).
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
disadvantage to continue; political actors begin to pay a price for

ignoring the interests of those people in the future.
These benefits are well demonstrated in the process leading to
the adoption of the Older Persons Bill. Even thought the bill was
developed prior to the judgment in Doctors for Life, the process was
similar. The SAHRC reached out to affected people who, at the time,
were poorly organized in terms of capacity for political input. The
SAHRC assisted, through outreach, education and workshops, in
learning about the views and perspectives of affected groups. It
organized conversations with and without agendas. It received input
orally and in writing from affected groups, advocates and experts.
Even with all of that outreach, its submission to Parliament was not
fully accepted. Continuing the process of seeking and incorporating
input, the SAHRC and parliamentary committees finally arrived at an
acceptable bill. Acceptable, in this context, has both a substantive and
procedural meaning. Given the nature of the deliberative democratic
process that underlies the bill, it seems highly likely that all
stakeholders must have felt respected as citizens throughout the
process. Most probably saw their views adopted on at least a few
points, and everyone likely had a chance to learn about the views of
people quite different from themselves. It seems unlikely that anyone
who participated or who will be affected by the bill will come to the
conclusion that the bill was adopted in a vacuum far from the
perspectives and experiences of those it attempts to assist. It also
seems unlikely that anyone who participated will conclude that they
cannot seek to influence legislation in the future. Furthermore, the
process resulted in the creation of an institution in civil society that is
concerned with issues affecting older persons and could have an
ongoing relationship with older persons and the legislative process.
On the flip side, Doctors for Life demonstrates the potential
losses to a society that has not adopted deliberative democratic
processes as part of the legislative process. In the US example, the
only deliberation was one-sided. Legislators were willing to hear the
input of advocates, but they did nothing to facilitate input by the
affected groups. The affected group was, like the older persons in
South Africa, politically impoverished. That is, they had no
organization in civil society that either represented them or sought
their views as advocates.113 Nor could they find each other, given the
113. Underrepresentation of economically disadvantaged people in pressure politics is a

common phenomenon. See Kay Lehman Schlozman, Benjamin I. Page, Sidney Verba & Morris
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
privacy rules that surround public benefits programs. In both cases,

legislators could have facilitated input by requiring government to
identify affected persons and seek their views.
By not reaching out to members of the affected groups and
facilitating their input, the legislator in the US example reached a
conclusion that failed to improve the economic situation of low-
income mothers without ever hearing from those women. He lost an
opportunity to bring low-income women into the political process and
give them a sense that they could make a difference in that process.
He reinforced their silence and denied them an opportunity to
develop politically, either as individuals or as members of a group. It
seems questionable that these women will find a reason to connect to
the political process during their lifetimes, given their not
unreasonable conclusion that their views matter little to anyone with
114
power. At the same time, the political process is impoverished by
their absence. Legislators and others in the political process cannot
learn the views of people who do not participate, and they are not
required to develop empathy or to rethink their positions. Finally, the
legitimacy of programs that are created to serve low-income women
cannot be assured, as the next few paragraphs will discuss.
While the judgment in Doctors for Life could lead to greater
participation in the legislative process in the US, it should be noted
that the historical and social contexts in the US differ from those in
South Africa. In the eighteenth century, when representative
democracy was adopted as the basic process for democratic
participation in the US, it was a bold innovation. When South Africa,
in its late twentieth century constitution, increased democratic
participation by adding participatory processes to a representative
democracy, it too was making a bold innovation. If the US follows
suit, it should be for reasons that acknowledge the changed US
political and social landscape and the need for changes in democratic
practices.
The South African context includes, as the court in Doctors for
Life said, the history of apartheid, during which the voices of most of
the country’s residents were suppressed, both by law and by violence.
P. Fiorina, Inequalities of Political Voice, in INEQUALITY AND AMERICAN DEMOCRACY: WHAT

WE KNOW AND WHAT WE NEED TO LEARN 19, 54 (Lawrence R. Jacobs & Theda Skocpol eds.,
2005).
114. Recipients of public benefits are underrepresented among politically active people in
the United States, including electoral and non-electoral actions, such as getting in touch with
elected officials. See id. at 43.
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
Without an authentic invitation to participate, many in the country

could continue to believe that their voices are unwelcome. In the
United States, a minority of residents have effectively been excluded
from the public sphere, even after de jure exclusion from voting came
to an end. That minority includes many people of color and people of
limited means, many of whom still fail to engage with the electoral
process. Their disengagement from the political process may reveal a
level of distrust of government similar to what the majority of South
Africa’s citizens experienced prior to 1994. Alienation at that level
cannot be combated by elected officials announcing a willingness to
receive input. More must be done. Reaching out directly to low-
turnout communities to engage with them in social inquiry, to ask
people to come together, to discuss their views and communicate a
position – all techniques suggested by the Court in Doctors for Life –
may be a necessary first step. Doing this regularly and supporting the
necessary institutions of civil society may produce even better results
over a longer term. Obviously, this approach requires resources and
commitment by government. Given the history and context in the US,
where relatively smaller groups than in South Africa have
experienced deep political alienation, the effort should be both
affordable and worthwhile. There is no need for government to
support the political development of the many groups in the US that
already enjoy extensive access to legislators through means such as
lobbying, think tanks, advocacy groups and campaign contributions.
Unlike in South Africa, where the majority was excluded, efforts in
the US can be focused on historically excluded groups.
CONCLUSION
The Court in Doctors for Life looked to international and
regional human rights instruments for guidance on the parameters
and importance of citizen participation in the legislative process.
Through its decision, the Court has also advanced our understanding
of respect and dignity as components of political citizenship in the
international human rights context, with lessons of importance to
both old and new democracies.
The court stressed that legislatures must facilitate input, and not
simply wait for people to provide it between elections. By inviting
participation, legislators not only garner information on which to base
better legislation, they also express their respect for the citizens
whom they consult. In turn, those citizens may become more engaged
and less apathetic about public life. The two-way street contemplated
KC & RM__FMT3.DOC 11/20/2008 9:34:45 AM
by the Court in Doctors for Life envisions a robust two-way ongoing

connection between legislators and citizens, something quite different
from the representative democracy commonly associated with civil
and political rights in both the domestic and international human
rights arena.
It is not difficult to imagine, as we have done in this article, how
the mandate of Doctors for Life could change political practices by
legislators. What seems somewhat more difficult to imagine is
whether the political practices by ordinary citizens would also change.
Will citizens experience themselves as having more opportunities to
influence legislators if invited to participate? If a change in perception
occurs, will more citizens participate? Will more advocacy
organizations develop in civil society? Will more citizens participate
as voters and as candidates in elections, or otherwise express more
political interest? Will historically disadvantaged and silenced groups
be heard more frequently in public life, and will their interests be
better advanced in public policy?
While we have become convinced, through our examination of
Doctors for Life, that participatory democracy is a beneficial addition
to a representative democracy, we are not yet convinced that human
rights norms must always encompass a duty by legislators to facilitate
public input into legislation. Before coming to that conclusion, we
would like to see some empirical research on our questions about
citizen political practices. Participatory democracy, even in the
limited form encompassed by the mandate of Doctors for Life, is an
expensive and time-consuming enterprise. It may result in some
unexpected policy outcomes. Some presently disadvantaged or
silenced groups may become even more alienated from political
activity and political power. A transformation of human rights norms
to include participatory democracy, therefore, should be based in
greater knowledge about what it means on the ground in countries
with different histories and varied social and economic contexts.
What Doctors for Life has contributed is a challenge that the
investigation be undertaken. The experience of South Africa
following this ground-breaking decision should be studied extensively
in the years to come.

Fulltextczapanskiy

Uploaded by

Copyright:

Available Formats

Fulltextczapanskiy

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Fulltextczapanskiy

Uploaded by

Copyright:

Available Formats

K C & RM 11/20/2008 9:34:45 A M

THE RIGHT OF PUBLIC PARTICIPATION IN

Copyright © 2008 by Karen Syma Czapanskiy and Rashida Manjoo.

2 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 19:1

Constitution.2 In the international human rights arena, the

2008] RIGHT OF PUBLIC PARTICIPATION IN LAW-MAKING 3

legislative body’s duty to facilitate input, using debates relating to the

4 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 19:1

interest of promoting human rights and democracy, the legislative

2008] RIGHT OF PUBLIC PARTICIPATION IN LAW-MAKING 5

I. APPLICABLE CONSTITUTIONAL AND INTERNATIONAL

A. Legislative Structures and Relevant Provisions

13. S. AFR. CONST. 1996 ch. 4, §§ 42 (1), 43(a), 44(1).

6 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 19:1

representative bodies they created.”18 The right to political

B. International and Regional Obligations

2008] RIGHT OF PUBLIC PARTICIPATION IN LAW-MAKING 7

8 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 19:1

II. OVERVIEW OF DOCTORS FOR LIFE

A. Facts of the Case

B. Holding of the case

2008] RIGHT OF PUBLIC PARTICIPATION IN LAW-MAKING 9

constitutional obligation to facilitate public involvement before

10 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 19:1

The Court concluded that both the Traditional Health

C. The Court’s Rationale

2008] RIGHT OF PUBLIC PARTICIPATION IN LAW-MAKING 11

including amongst others: provisions in human rights instruments, the

36. See supra Part I.B.

12 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 19:1

The Court’s focus on the ‘nature’ of South Africa’s democracy

D. Court’s Self-imposed Limits

2008] RIGHT OF PUBLIC PARTICIPATION IN LAW-MAKING 13

14 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 19:1

III. THEORIES RELATING TO THE NOTION OF

44. Id. at 146-47.

2008] RIGHT OF PUBLIC PARTICIPATION IN LAW-MAKING 15

dialogic participation. Both stand in contrast to “thin” or purely

47. BENJAMIN R. BARBER, STRONG DEMOCRACY: PARTICIPATORY POLITICS FOR A NEW

16 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 19:1

52. See generally id. at 26-31.

2008] RIGHT OF PUBLIC PARTICIPATION IN LAW-MAKING 17

normative claims of value, priority, and significance,” and the

18 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 19:1

“can assure sufficient equality and justice to coexist with a variety of

59. BARBER, supra note 47, at xii.

2008] RIGHT OF PUBLIC PARTICIPATION IN LAW-MAKING 19

undertake such an extensive and expensive process, but it suggests

20 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 19:1

68. See Michelman, supra note 54.

2008] RIGHT OF PUBLIC PARTICIPATION IN LAW-MAKING 21

22 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 19:1

for the members of these historically silenced groups as well, another

2008] RIGHT OF PUBLIC PARTICIPATION IN LAW-MAKING 23

effect, buy greater access to decisionmakers. Avoiding that result

78. Id. at 184-85.

24 DUKE JOURNAL OF COMPARATIVE & INTERNATIONAL LAW [Vol 19:1

2008] RIGHT OF PUBLIC PARTICIPATION IN LAW-MAKING 25

same lack of institutional capacity is viewed by many countries as