Japanese Parliamentary Rules & Administration Committee visit & Private Members' legislative proposals guidelines

Rules of the National Assembly

23 August 2010
Chairperson: Adv M Masutha
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Meeting Summary

The Committee met with the Standing Committee on Rules of the Japanese Parliament, who was on a study tour to South Africa. The Japanese delegates asked for, and received an explanation on the procedure for raising and discussing issues in Parliament, as well as the procedure for the passing of legislation. This Parliament had a procedure for private MPs to initiate legislation, provided that it was supported by a minimum of 15 other members. Legislation could also be proposed by Committee Chairpersons, and this method was often used for emergency measures. Members felt that the Japanese model would be useful to study.

Members then continued their discussions about the procedure for private members’ legislative proposals and petitions, which were handled a separate Committee, who would discuss the proposals before they were even referred to the relevant portfolio committees. However, the Rules were not clear as to the mandate of this Committee and the sub-Committee on the Review of the Rules was needing to draft rules. The Committee Secretary explained that the Committee on Private Members Legislative Proposals used the guidelines set out in Rule 235. Two Members felt that these guidelines were not comprehensive, and one expressed the view that at least subclause (f) of that Rule was unclear as to how the demand would be measured. The question was whether that Committee would be making an objective or subjective decision. The Chairperson of the Committee on Private Members Legislative Proposals and Special Petitions outlined that his Committee would consult with portfolio committees, but in reality this often delayed the issue and the lack of time frames was problematic. Sometimes, private Members would attempt to pre-empt legislation that was about to be introduced by a department. Consultation with portfolio committees was supposed to be limited to substantive issues, but did not go to the substance of the proposal. A DA Member suggested that perhaps sub-Rules 235(3), (4) and (5a) were not necessary. Other Members disagreed, pointing out that all legislation had financial implications. The DA member countered that this could be discussed at a later stage. The Chairperson noted that this Committee and the Committee on Private Members Legislative Proposals would be meeting later.

Meeting report

Visit by the Japanese Parliamentary Standing Committee on Rules
Mr Kamasuto Tekiyake, Chairperson, Standing Committee On Rules, Japanese Parliament, introduced his delegation. He then asked how the South African Parliamentary system worked. He noted that his delegation had attended a sitting of the National Assembly, and had noted that a variety of questions were asked by Members of Parliament, in a seemingly haphazard way, during this sitting.

Mr C Mulder (FF+) explained that the Programme Committee met every week, to allow for all parties to discuss the programme for the following week. The Technical Committee also prepared the work before the Programme Committee could start with the discussions. He said that the Chief Whips Forum was a platform for political parties to reach consensus on political issues.

Ms L Mashiane (COPE) explained that all Parliamentary Committees were governed by the Rules of Parliament. The bulk of the legislative work was done at Committee level, and the discussions, in the House, on tabled bills, was the final step in the process, that was done after the Committee had done its work on such legislation. She noted that the discussions on 24 September 2010, on the Treaty with Ireland, were led by the Minister of International Relations.

Mr J Pretorius (DA) said that all Members of Parliament could raise issues. Firstly, this could be done during a House sitting, by giving notice and raising a motion, and some of those motions would be taken up for discussion. The second point was that parties could raise issues that were known before they were raised in the House, and were not controversial. The third point was that Members could raise issues and the Minister would respond immediately. The fourth aspect was that Bills would be tabled before the House, and would then be discussed.

Mr Tekiyake explained that in Japan, the Parliament had two houses, the Lower House and the Upper House. Both of them were ruled by the majority political parties. The majority party in the Upper House was the Democratic Party, while in the Lower House the Democrats were the minority. This then made the Japanese Parliament essentially ruled by consensus. It was difficult to pass legislation because both the Lower and the Upper House had to pass a bill before it became a law. He said that his Committee had to devise new rules that would help smooth the legislative impasse.

Mr C Mulder said that he thought this system was good, because it would force parties to compromise and eliminate absolute power.

Ms F Chohan (ANC) enquired about the role of the Japanese Rules Committee in dealing with Private Members’ Legislative proposals. She explained that in South Africa the Executive, Committees or individual Members of Parliament could initiate or propose legislation.

Mr Tekiyake replied that in Japan the Cabinet Members initiated legislation and individual Members were also permitted to propose legislation. Private Members’ proposals had to be supported by 15 to 20 Members before these could even be considered. These proposals were often considered after a long time, even up to three years, after they had been proposed, because the priority legislation was given precedence. Legislation proposed by Committee Chairpersons often went through the process faster. The Chairpersons often initiated legislation that dealt with emergencies, such as floods or decisions to send troops in peace keeping missions.

The Chairperson asked whether legislation started at the Committee level or in the House.

Mr Tekiyake replied that legislation was considered at the House and must be supported by 15 Members, before it was taken up by the relevant Committee

Mr M Oriani-Ambrosini and the Chairperson felt that the Committee should study the Japanese model thoroughly.

Mr Tekiyake said that his delegation had to squeeze a lot of engagements in a very short space of time, and that he would be delighted to host the South African counterparts of his Committee in Japan.

Both Committees exchanged gifts and wished each other well in their endeavours.

Private Members’ Legislative Proposals: continuation of discussions on proposed amendments
The Chairperson urged the Committee to proceed faster, because there was a lot of work to be done. He summarised that Parliament had a Committee on Private Members Legislative Proposals and Petitions, which currently considered all legislative proposals. The Legislative Proposals Committee would deal with a proposal before it was even discussed by the relevant Portfolio Committee, who would then take over and discuss the substantive issues raised in the proposals. He said that the Rules were not clear on the mandate of this Committee, even though the Committee had already done some work in the past. He added that the Sub-Committee on the Review of the Rules had to draft some rules, and it would be informed by the work of other Parliaments in other countries.

Ms Marina Griebenow, from the National Assembly Table Staff, explained that the Committee on Private Members’ Legislative Proposals had guidelines that it used when considering legislative proposals. A proposal had been made to amend the Rules so that they now referred to criteria that would be set out in a new Rule 235A. She read out the proposal for Rule 235A, as follows:

”The Committee, in its consideration of legislative proposals, must take into account whether the proposal: 
(a) goes against the spirit, purport or object of the Constitution;

(b) seeks to initiate legislation beyond the legislative competence of the Assembly;

(c) duplicates existing legislation or legislation awaiting consideration by the Assembly or Council;

(d) pre-empts similar legislation soon to be introduced by the national executive:

(e) seeks to make a charge on or reduce public revenue; and

(f) is a measure for which there is a general necessity or demand.”

Dr M Oriani-Ambrosini (DA) said that the fundamental question was whether the Committee would make a subjective or an objective decision on the matter. Some of the considerations were rather questionable – for instance, sub-clause (f) was not clear, because it gave no indication how the “general necessity or demand” would be measured. He asked whether a service delivery protest in one township would constitute a demand or not.

Mr Pretorius concurred with Dr Oriani-Ambrosini and said that these guidelines could not cover everything.

Mr S Thobejane (ANC – Chairperson, Portfolio Committee on Private Members Legislative Proposals and Special Petitions) said that Rule 235 (1) stated that the Speaker must refer a Member's memorandum to the Committee on Private Members' Legislative Proposals and Special Petitions. This Committee must then, in terms of sub-rule (2), consult the portfolio committee within whose portfolio the proposal fell.

He said that his Committee often consulted the relevant portfolio committee, but the latter often would not respond or was reluctant to comment. The portfolio committee thus often delayed the work of his Committee. Some proposals would gather dust because there were no clearly stipulated time frames. Other legislative proposals were initiated by Members, who heard that a certain Minister would be initiating a piece of legislation, and would rush to propose some counter-legislation. During the briefings, it would often come out that the proposing Member had been part of another portfolio committee and had abused his or her insider information.

The Chairperson reminded members that consultation with the relevant portfolio committee could only be done on substantive issues.

Ms Griebenow reminded the Committee that the consultation was limited in its scope. It was only related to avoiding duplication of existing legislation, or legislation awaiting consideration by the Assembly or Council, or if it pre-empted similar legislation soon to be introduced by the national executive. It was not referring to the substance of the proposal.

Dr Oriani-Ambrosini asked whether these considerations stood alone, or whether they were in addition to other requirements. Rule 235(3) dealt with finance, and was substantive. He thought that it was not necessary. The same comment applied to subclauses (4) and (5)(a). He read those out.

Subclause (3) noted that if the Committee on Private Members’ Legislative Proposals, after consultation, was of the view that the Member’s proposal warranted further investigation, but may have financial implications for the State that were significant enough to affect its desirability, then the Committee must request the Speaker to refer the proposal to the appropriate portfolio committee for a report.

Subclause (4) said that the Committee on Private Members’ Legislative Proposals, after consider the private Member’s memorandum, and any report from the portfolio committee, must recommend either that permission be granted to proceed with the legislation, or that it be refused. If the Committee, in terms of subclause (5) recommended that the proposed legislation should proceed, then it may express itself on the desirability of the principle.

Ms E Thabethe (ANC) disagreed with Dr Oriani-Ambrosini’s suggestion. Subclause (3) covered every angle. It would be problematic if it were to be removed. The majority of legislation that had been passed had financial implications.

Mr Oriani-Ambrosini said that financial implications could always be assessed at a later stage.

The Chairperson said that the Committee would meet with the Portfolio Committee on Private Members Legislative Proposals after the meeting.

The meeting was adjourned


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