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AD HOC COMMITTEE ON POWERS AND PRIVILEGES OF PALIAMENT
28 May 2002
SEVENTH DRAFT OF POWERS AND IMMUNITIES OF PARLIAMENT BILL: CONSIDERATION
Chairperson: Mr P.A.C. Hendrickse (ANC) [acting]
Documents handed out:
Powers and Immunities of Parliament Bill (Draft Seven)
The purpose of the meeting was to go through the Seventh Draft of the Powers, Privileges and Immunities Bill and confirm that it included the Committee's suggested amendments to the Bill as identified in the sixth draft.
The Chair proposed that this be an informal consideration of the seventh draft, as the Chair had been unable to attend the meeting and they did not form a quorum. They would merely go through the Bill and see as whether it reflected the wishes of the Committee.
Mr C.W. Eglin (DP referred to Clause 3 under the heading Control over Precincts by stating that with the constant referral to the 'Speaker' he took it that the Speaker could delegate power. Could they check whether there were powers to delegate in terms of the Standing Rules?
The Chair stated that the definition of Speaker under the definitions Clause of the Bill catered for this.
Mr Eglin in further reference to Clause 3 (1) and 3(2) asked whether the word 'directions' should not have been 'directives'?
The Chair, upon consultations with the drafters, stated that 'directives' should be substituted for 'direction'
Mr Eglin suggested that at Cl4 (b) the comma after the second 'of' be deleted.
On Cl5 (1) he stated the definition of 'security forces' under Section 191 of the Constitution included the Police, and the reference to 'Police' should therefore be deleted.
The Chair, in consultation with the legal drafter, conceded that these must be deleted.
Mr Eglin stated that at Cl6 (10), the word 'expel' was not appropriate: you could expel a person from the House not from membership. He felt that the word 'suspend ' would have been the right word to use.
Further in reference to this subclause he stated that he was sensitive to the reference that said 'Subject to the constitution'. It would have been more appropriate to state 'In terms of the Constitution'. 'Subject to' implied that other provisions were not subject to the Constitution.
Mr Meyer (drafter) stated the purpose of this had been to bring attention to S47 (3)(b) of the Constitution which authorised the House to, in effect, expel a member if absent from the House in certain circumstances. As one of the traditional privileges of parliament was to expel members, it made it clear that the House no longer had this traditional privilege.
Mr Eglin then suggested that they rather say 'Except as provided in the Constitution'
Mr M.F.Cassim (IFP) asked whether "annul' would not have been an appropriate word rather than 'expel' in Cl6 (10)?
The Chair stated that the member would be subjected to termination.
Mr Eglin stated that 'terminate' would be wrong as it implied that the member would no longer be allowed back into the House.
Mr Cassim then suggested that they look at the wording clearly and see which was the precise term for the termination.
Mr Eglin referred to Cl6 (11) where he stated that it would not have been necessary to state in terms of the 'standing rules'
Mr Meyer stated that the power of that person went further than the standing rules.
Mr Eglin then referred to Cl7 (b), stating that under Cl9 a person is liable to be in contempt while Cl11 is in two parts; a person who could be a member of the legislature and secondly only a member of the legislature. Was the person receiving a fee in contempt and also committing a crime? The whole of Cl 11 referred to contempt but only Cl11 (2) referred to a member. He said he had thought that the things a member did in relation to his duties were contempt and his peers would charge him.
He thought that Cl11 (2) and Cl12 should be deemed to be acts of contempt, though it would be difficult in Cl12 because the member would have spoken in the House on a subject, the House did not judge them but the courts could.
Cl11 (1) stated that 'a person may not intimidate'. Clearly, if a member is a person Cl12 (2) only deals with a member and his behaviour, the whole of Cl12 therefore deals with contempt.
Mr Meyer informed the members that there was a new Prevention of Corruption Bill that had been introduced, which included some of these aspects. Though his suggestion would be that there should add S11 (2) in respect of the legislature. Contravening Cl11 (1) is a criminal offence. In terms of the 1963 Act it is a criminal offence but if the Committee wanted it to be changed to contempt of parliament this could be done.
Mr Eglin stated that his view was that if a Member of Parliament as a member of the public did something he had to be charged as a criminal offence, but if he did something as a Member of Parliament then he should be charged for contempt.
Mr Meyer stated that in that context it made sense, Cl12 being the code of conduct for the members themselves.
The Chair suggested that it should therefore come after Cl9. Cl7 (b) should therefore read 'contravenes Cl9, Cl11 (2) and Cl12 (1)'. This would therefore sorted out what was criminal and contempt for the members.
Mr Eglin stated that in this case the reference to Cl12 (1) on page 22 should be deleted.
The Chair agreed to this.
Mr Eglin stated that under Cl13 the test to be applied was that the member was needed in Parliament. Where it was happening was irrelevant.
The Chair asked whether he was suggesting that they delete "situated outside the seat of a legislature'
Mr Cassim stated that if as a matter of practicality the Court was in Cape Town then would the provision make sense?
Mr Eglin stated that in such a case the speaker would allow one to attend.
Mr M.T.Masutha (ANC) stated that he wanted to clarify the two separate principles. The one being that the speaker could issue a certificate and the other which was a long standing practice was that a member could not attend legal proceedings if parliament was in session in an area outside the legislature. What was the status of this rule?
The Chair stated that members could not be treated separately from the other members, if the speaker determined that a member could not go she would not issue a certificate.
Mr J.P.I. Blanche (FA) stated that Cl9(c) and Cl9 (d) and Cl11 he felt that 'insult' had nothing to do with the proceedings of the legislature. Were these clauses trying to make sure that process and proceedings were not jeopardised? This was something that the Presiding officer could take charge of, this being the common proceeding in the rules.
The Chair asked whether there was a legal provision for insult.
Mr Meyer stated that there was probably a provision for crimen inuria. This provision had been taken from the existing Act but if they wanted it removed, it could be.
Mr Cassim asked whether the word could not be replaced with 'abuse' which was a stronger term than insult and intimidate.
Mr Masutha said that maybe that would be too broad, insult was more specific it was about utterance, there were clear legal precedents as to what constituted insult.
Mr Eglin stated that it should be 'intimidate' rather than 'insult'.
Mr Meyer stated that his problem with intimidate was that it was too broad: when would an action amount to intimidation? If the members were not happy with 'insult' then they could restrict it.
The Chair wanted to know what action one got for insult?
Mr Meyer stated that it was a criminal offence, but if a member did that to another member it was contempt as covered by Cl7 (b).
Mr Masutha stated that threatening had to do with threatening a person's life and well being. Insult was important, as members should be able to conduct their business without fear. This would simply be to protect a person who was going into a meeting and coming out of a meeting.
Mr Cassim stated that insult could be quite frivolous and they did not want to create a situation where they would start litigating.
Mr Eglin stated that in the old Act it was clear as to what kind of insult this was: 'insult in order to compel a person to take a position'. The present Bill did not contextualise the meaning.
The Chair stated that if they read the whole clause they could get the sense of its intended meaning.
Mr Eglin referred to Cl18 (2) and asked whether it intended the same meaning as applied in a court or commission.
Mr Meyer stated that it was not the same, but was similar to the procedure adopted by some commissions such as the Truth and Reconciliation Commission. A person was obliged to speak but the evidence could not be used against him, bearing in mind that the witness was obliged to give evidence but if he did not he would be charged with an offence.
The Chair stated that whatever a person said in Parliament could not be used in evidence in terms of Cl2 (d), (c), Cl19 (1)(c). A person was therefore protected.
Mr H.Schmidt (DP) stated that in Cl22 the phrase 'as evidence of the journal', seemed to be a language problem. Should it not read 'as evidence of the proceedings'?
Mr Masutha stated that he did not agree with this proposal. The principle suggested that when the proposed proof was produced as evidence there would be no need to bring in the Secretary of Parliament to authenticate it as the journal would be prima facie evidence of the proceedings.
Mr Meyer stated that he agreed that if they took out 'journal' then they would be broadening the scope.
Mr Schmidt stated that he was raising this in regards to the plain issue and not as a legal issue. Were they proving that this was a journal or that the proceedings contained were deemed to be the proceedings of Parliament?
Mr Masutha stated that when they produced a document in law, the most senior person in the institution was compelled to support that document with an affidavit supporting the authenticity of the document. It seemed that this provision was intended to obviate the need to do this. Therefore, without this clause, the other side might object to the authenticity of the document.
The Chair then asked as to whether then the word 'journal' was correct as it stood.
It was agreed that it should remain as stated.
Mr Eglin referred to Cl27 (2)(b) stating that he felt that it should be put somewhere in the substance and the numbering in that clause be put under (a) as it conveyed a substance of the offence in the final clause.
Mr Meyer stated that the phrasing came from the history of this Clause, which had been changed substantially, it though could be included in a substantive provision, as it would look neater. It could therefore be put on its own under a heading Prohibition. It would have to be restructured.
The Chair stated that in the schedule they had to retain Sections l31 and 39 until they had been replaced by something else, as they were in the process of being repealed.
Mr Eglin stated that he agreed with points 1and 2 in the Memorandum. He disagreed with the phrasing. What special rights were they talking of, he felt this had no relevance and further they were not dealing with traditional rights under the old constitution but rights under the new constitution.
He suggested that they start off by saying 'that the constitution provides certain rights.'
Mr Masutha stated that he was inclined to support Mr Eglin, the new constitution started a whole new chapter, and it should therefore be their point of departure. He did not agree with the implication that the new constitution followed through from what they had adopted from the previous pre-apartheid constitution.
Mr Meyer stated that there are certain aspects that are inherent, for instance freedom of speech. Even if the Constitution had not made any reference to it, members would still have it because that is how Parliament operates. If the members wanted to refrain from referring to this background they could state that the Constitution provided for certain privileges and others could be derived from legislation.
Mr Schmidt stated that a right could never be a privilege. They should also forget about traditions and special rights.
Mr Eglin stated that some of these privileges traditional to a parliamentary system have been incorporated. The should not be on conferring privileges. The main privileges had been incorporated into the Constitution.
The Chair asked what the purpose was of the memorandum. Could it be relied upon in court?
The Drafters stated that it could not.
Mr Masutha stated that in reviewing the formulation of this they should look at what kind of message they wanted to convey to the public. It should not come out as if they were a bunch of politicians who were trying to create special privileges for themselves. It should suggest that the intention was to achieve an effective functioning of Parliament. This memorandum was therefore critical.
The meeting was adjourned.
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