Amnesty Hearings — Vanderbijlpark — 1999-05-12

MR LOWIES: The quantum leap from the last portion where I have agreed with you, Chairman, to this submission I would submit is too big.  I would like to see, and this is what the applicants are requesting from you, an intermediate situation whereby this Committee gives its viewpoint in public where they can hear it, that this Commission does not, or do, consider itself as being bound by that.
	Because Chairman, I would submit that the essence of the application is actually the following;  the essence of the application is not one whereby the Commission, this Committee should withdraw or recuse itself as a result of the finding by the Commission.  But what I would suggest is very important, and this is in the interest of transparency, that I would suggest inter alia, that once there is a decision like that, which has been widely publicised, the next aspect is, you are with respect seen as an extension, but if this Committee gives a final ruling on an issue which may be in the mind of a lay person, and this is the nature of the declarator, that it does not regard itself as being bound, that is not of course a problem.  	On the other hand, with respect, Chairman, I can see - and I would definitely have to take further instructions regarding that, if your finding is; I find myself bound by these decisions of the TRC, then of course the whole matter has to be reinvestigated and I will have to get instructions from my clients.  But what I'm stating at this stage is the following;  I postulate two scenario, either the Committee, if in agreement with what I'm suggesting, makes a declarator stating that it does not consider itself as being bound, in the interest of the applicants, setting their minds at ease, then that is the end of story.  The second scenario which I do envisage and which is also possible, is of course that you do find, I would submit highly unlikely that you would find, but still if you do find that you are bound by that decision and you are just sitting here as a rubber-stamp, of course then I'll have to take further instructions, but I don't think that we need to go to that stage at this stage.  So what I'm saying ...(intervention)

CHAIRPERSON: Why are you submitting that it is highly unlikely that we will find that we are bound by the decision of the Commission?

MR LOWIES: That is a personal opinion and, I see it inter alia as I've mentioned before, I don't want to argue the matter on behalf of the Committee, but I see it inter alia in the fact that you have the specific power in terms of the Act, or nobody has the power to review the Committee's decision, but on the ...(intervention)

CHAIRPERSON: But isn't that a complete answer then to your submission?

MR LOWIES: But Chairman, I would submit that it is necessary that an order in that regard be made in public, where the applicants have a fear ...(intervention)

CHAIRPERSON: But Mr Lowies, you can't blow hot and cold.

MR LOWIES: I beg your pardon?

CHAIRPERSON: You can't blow hot and cold.  If your submission is that having regard to the institutory scheme which governs the Amnesty Committee, the legal position is that the Amnesty Committee cannot be bound by the decision of the Commission, isn't that the complete answer to your submission?

MR LOWIES: I would submit no, Chair, and the reason why, and I have initially referred you to that, the test on whether there is a likelihood of bias is whether a lay person in the position of the applicants would see it as such.  Now what I've said is, and I ...(intervention)

CHAIRPERSON: No, but the position of the lay person, if the lay person does not understand how the Committee works and what is it that can satisfy the lay person, because the legal position is there, you have considered, albeit in a feint tone, that that must be so.  Now if that's your position, now what is it that this Committee can do to allay the fears of the lay person that you have in mind?

MR LOWIES: Chair, I would like to phrase it as follows;  I would like to say that there are two scenarios as I've indicated to you, the one is you find that you are bound, the other one is you find that you're not bound, but the situation does not answer the prayer which the applicants have.  Their argument simply amounts to the following;  you are belonging to the same body, being an extension of the TRC, therefore ...(intervention)

CHAIRPERSON: I think the issue is not so much whether we belong to the same, we are part of the same body, the issue what are the powers of this Committee, because I think it is in the, the answer to your application primarily lies in the powers of this Committee.  I think that's where the, and that is where the answer ought to be sought.  I mean if the Act is clear on what the powers of the Committee are, and notwithstanding that the lay person that you have in mind is still not happy, what I want to find out from you, what is it that this Committee can do to allay the fears of the average lay person that you have in mind?

MR LOWIES: Chairman, what I would suggest is the following;  I have said that I think - and I did not make a concession, I have said that I think it is unlikely that scenario two as I've described it, may be a finding by this Committee, ides that you are bound by it, in other words you are a rubber-stamp of that.  The Act does not say that you are a rubber-stamp or you are not a rubber-stamp, it is silent on that.  One thing that the Act does say is that the TRC cannot review what you are doing when it comes to amnesty.  It's got powers of review regarding various other aspects, but regarding the amnesty itself, it's got no power of review, as I see the Act.

CHAIRPERSON: Well you see, it seems to me that for the lay person's viewpoint to prevail, the lay person would have to go further and say; my fears are that notwithstanding the evidence that would be before you, which suggests otherwise, you are going to ignore that evidence and you are going to find against us.  If the lay person can't go that far, if he can't suggest we're going to ignore the evidence, then I can't see how the fears come into the picture.  Because once it is accepted that we've got to decide the matter based on the evidence before us, I can't see how, what the Commission has found based on the material that was before it, it can come and influence us.  Because if we do that, it would seem to me that it would be gross dereliction of duty, because we have to decide the matter based on the evidence before us.  So unless your lay person goes further and says; I fear that in light of this report, these findings, this Committee is going to ignore the evidence before it and will find against us on this issue.

MR LOWIES: Chair, I would submit the leap from what they want in prayer number 3 to the fear, is too big in this argument or the proposal that you've put to me.  What I would suggest is the following, Mr Chairman; there is not clarity, even where we are sitting today, as to whether or not you find yourself as being bound by that decision ...(intervention)

CHAIRPERSON: It may not be clear in your mind, but I'm sure in the mind of many others it is quite clear what the Act requires of us.