NHI Bill is constitutional, insists state law adviser
The National Health Insurance (NHI) Bill is constitutional, state law advisers told the National Assembly’s Health Committee yesterday. Acting chief state law adviser Ayesha Johaar said the Bill had been certified as ‘constitutionally aligned’ last month, notes a News24 report.
Johaar added section 27 of the Constitution obliged the state to take reasonable measures to give effect to the right to health care, adding SA was party to international agreements with which it must comply.
The DA has questioned the Bill's constitutionality. DA leader Mmusi Maimane wrote to National Assembly Speaker Thandi Modise to urgently request that she instruct parliamentary legal services to obtain a legal opinion on the Bill before it came before the Health Committee.
Maimane also asked the DA's legal team for an opinion on whether it was constitutional. The party is questioning the Bill's legal validity as it seemingly takes away provinces' constitutionally enshrined right to handle health services.
Schedule 4, Part A of the Constitution sets out the functional areas of concurrent national and provincial legislative competence – the government functions where decision making is split between national and provincial governments.
Health is one of these concurrent functions.
Johaar told the committee the Bill does indeed apply to schedule 4, as it dealt with health services. She said national legislation would prevail over provincial legislation. The legislative instrument to determine national policy is the National Health Act and every Health MEC must implement the national health policy.
Provinces may enact provincial laws in compliance with the Act. The NHI Bill does not affect that.
‘We are satisfied that the Bill does not infringe on any of the universal rights in the Bill of Rights,’ Johaar said.
She added she was satisfied that Parliament would not violate the rule of law in processing the Bill.
DA doubts remain, however, with the party’s shadow Health Minister, Siviwe Gwarube, a member of the committee, saying she did not accept Johaar’s position on the Bill. ‘A legal opinion is just that – an opinion,’ she is quoted as saying in a Business Day report. Health Minister Zweli Mkhize and his officials briefed MPs on the Bill’s provisions, which include establishing a central National Health Insurance fund to purchase services on behalf of the entire population that will be free at the point of care.
In response to MPs’ questions on financial implications of the NHI, Mkhize said there was close consultation with the Treasury on its costs. Mkhize said the Bill’s provisions on its funding sources – including redirecting funds allocated to provincial health departments, scrapping medical-scheme tax credits, instituting a payroll tax, and a surcharge on income – did not step on the Finance Minister’s toes.
Measures such as these would be formalised in a money Bill that would be tabled by the Finance Minister, he said. ‘We have not transgressed, and it is not wrong to have it (in the Bill),’ he said. Health department technical adviser on NHI Aquina Thulare said it was expected the fund would spend no more than 3% of its budget on administration.
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