National Assembly Rules revision: Task Team deliberations

Meeting report

Introduction by Chairperson
The Chairperson said that agenda for the meeting was a short yet there was a lot of work which had to go into it. The first item on the agenda which had to be attended to was for the task team to receive an update on the progress of the drafting process.

The Committee Secretary, Mr Perran Hahndiek, said that the update basically had to do with the draft rules from Chapter 1 to 5 highlighting the various insertions. There were two research papers which dealt with Allegations against Members contained in Rule 63 and the other dealt with Visiting heads of state in Rule 43. Some of the research papers were outstanding but they would be looked at later on.

Ms J Killian (COPE) suggested that the Members looked at all the research papers later on, especially as they had not had the opportunity to read the documents.

Mr J Jeffery (ANC) said that he did read one of the research papers on the decision questions. His concern was with the use of the word “aye” which was no longer in use in modern days. He had found out that this word was no longer in use in all Parliaments around the world, except in Kenya and Zambia which did not use anything. There was no reason for Parliament to insist on doing something simply because it was what was done by the British. He also wanted an update on the progress of the Chapter 6 redraft.

Mr Perran Hahndiek said that Chapter was currently being drafted.

The Chairperson said that it was important for the Task Team to work out whether to continue using the words “aye” and “nay”.

Presentation on Motions and Draft Resolutions
Mr Kasper Hahndiek, consultant and former Secretary to the National Assembly, said that with regards to motions and draft resolutions, Rule 96 was a particularly important one and he suggested that the rule be looked at again. The intention of a draft resolution was that the House should reach a decision on a particular matter and the decision arrived at was to reflect the broadest possible opinion of the House. This meant that when a draft resolution was presented to the House, Members should be able to move amendments to such a draft resolution so that the outcome would be a decision that correctly represents the decision of the house. This type of an outcome requires the possibility of amendment.

Mr Hahndiek said that the Speaker had the responsibility to ensure that any proposed draft resolutions comply with the Rules. The draft resolution had to be constitutional, not contain any un-parliamentary language and should cover an aspect which Parliament had the responsibility to take decisions on.

A motion once printed on the Order Paper remained the property of the Member in whose name it was established. Such a motion stands in the name of the Member until formally moved in the House for consideration and adoption. This meant that until a motion was moved in the House, the Member who initiated it could decide to discontinue the motion and in that case it immediately lapsed or fell away. Once the Member had formally moved this in the House, then the motion becomes the property of the House and the Member may no longer withdraw it without special leave of the House.

Mr Hahndiek told the Task Team that the Staff was looking at and working on an additional section which dealt exclusively with Motions of No Confidence.

Discussion
The Chairperson said that the deliberations were to follow the agreed procedure of moving rule by rule to ensure order and coherence.

Mr M Oriani-Ambrosini (IFP) said that the presentation from Mr Hahndiek was not given rule by rule but on the rules in general so his comments were in response to the presentation. He strongly disagreed with Mr Hahndiek on his point on Rule 96 relating to the amendment of draft resolutions.

The protection of no amendment of draft resolutions was a minority party protection to avoid what majority parties do when there was a vote of no confidence on either the Speaker or the President. In such cases, after the motion was debated, majority parties inserted amendments to the draft resolution which removed the essence of the resolution and what remained was the exact opposite of what was decided

The permission to amend draft resolutions could give the majority party the opportunity to substantially change the meaning of a motion, thereby not paying the political price of the deliberation and decision taken. There was the need to eliminate the power of the presiding officer to amend a motion.

Secondly, there were a number of rules which were not in the rules. An example was that the Table Staff had refused to publish on the order paper a motion which Mr Ambrosini had raised in the House (and which nobody had objected to), on the basis that it was too long. He had checked many other motions and the one he raised appeared to be much shorter. That was censorship on the basis of content and he was going to go to the police to press charges in terms of the Immunities Act. It was a very serious form of abuse which was not covered by the Rules.

Mr Jeffery said he had many things to say about the rules and in response to Mr Ambrosini, but he was going to respect the agreement of the Committee to go rule by rule.

The Chairperson said that Members could start engaging on the various rules.

Rule 94
Ms Killian said that it was correct that the Task Team was also attending to a possible extension of Rule 94. There was the need for such an extension to include issues pertaining to the Constitution.

Mr Jeffery said that a Motion of No Confidence was both a subject for discussion and a draft resolution but there was another process which could handle that. This meant he did have any proposals for the amendment of Rule 94.

Ms S Kalyan (DA) said that she did not agree with Mr Jeffery as there needed to be a specific option for Rule 94. The Motion of No Confidence had to be specifically put into the Rules and it was the responsibility of the Task Team to come up with the exact wording.

Mr Jeffery said that his understanding was that the Sub-Committee on the Review of Rules had to report to the Rules Committee and it was not the place of the Task Team to interfere with the responsibilities of the Sub-Committee.

Ms Killian asked if Mr Jeffery was saying that there was no need to adjust Rule 94.

Mr Jeffery replied that the issue of Motion of No Confidence was an urgent matter for which there had to be a progress report given to the Constitutional Court in March. There was a planned Rules Committee meeting on the 22 February 2013. His proposal was that - as opposed to wasting time here in the task team debating the issue - Motion of No Confidence issues could be left for processing by the Sub-Committee and the Rules Committee.

Mr Ambrosini said that the relevance of the debate was that there was a suggestion from the Table Staff that there were different types of motions and some were more important than others. For instance, a motion to ratify a state of emergency must be heard otherwise the state of emergency lapses. A Motion of No Confidence must be heard because it was a minority right.

Mr Jeffery said that the proposal was first under Rule 94 to include the words “constitutional related motion” and that was defined under Rule 98. His difficulty was with the way it was done. With a state of defence and a state of emergency, if the National Assembly did not approve them, they lapse.

Ms Killian said that if there was the problem that the Task Team did not want to make reference to a list of possible constitutional motions, then the only thing was that the drafting could be done in general. However, there was the need to make provision for specific situations.

The Chairperson said that it was the Task Team which was supposed to do such drafting. A "general" drafting style could be good because to come up with an exhaustive list of possible constitutional motions was not going to be a possible or easy task for the Task Team. There could be many other ways of accommodating all the views but not necessarily coming up with an exhaustive list.

The Chairperson asked if former Members of Parliament who were present, had any contributions to make to the debate.

Mr Ellis said that Ms S Seaton and himself, who were both former MPs, had very little to say as a lot of things had happened in their absence which placed them at a disadvantage with regards to participating meaningfully in the debate. It was really difficult for them to participate.

The Chairperson said that the Task Team was going to try to have a general rule and then wait on the outcome of the processes relating to Motions of No Confidence. The Task Team was going to receive from the Sub-Committee the decision taken - then that could be included in the drafting of the rules.

Mr Ambrosini said that he suggested that Rule 94 should stay the way it is.

Rule 95
Mr Jeffery said that it was important to define the word “session” in Chapter 1. In dealing with Rules 95 and 96 together, the practice had been that draft resolutions do get amended on the floor of the House. Did 96 cover the case where, if the Rules censure someone or an act and that motion gets amended. Could he move the original motion because it was not approved or rejected - but it was amended?
Mr Jeffery also said that there needed to be a definition for the word “privilege”.

Mr Hahndiek said that it was true that the wording of the rule was not very helpful. The current rule was that a motion could be amended provided it assisted the House in reaching the decision it wanted to reach. It was also important to remember that when a motion was put before the House, both the main motion and the amendments were part of the debate and could be commented on and debated. At the end of the debate, both the main motion and the amendments were put forward for decision making. The sequence in which that happened, however, may be a problem. Normal practice was that the Speaker may decide on the sequence.

Ms S Seaton, a former MP, asked at what stage the Roberts Rules of Orders came into play. According to Roberts, the last amendment was to be put first.

Mr Jeffery said that it made sense that in dealing with legislation, the House should look at the amendments, before putting together the whole text.

Ms Marina Greibenow, NA Table Staff, said that the Rules did not permit the amendment of a motion to completely change the essence or the sense of the motion. The alternative to amendment in this case was to vote the motion down and not to amend it.

Mr Ambrosini asked why motions were amended. The main reason was to improve on the motion. It was for political purposes that a motion was amended to change its meaning and that was not right. The opposition which was a minority must have the right to be protected from having its good ideas changed or sidelined through the amendment of motions. What the majority party was going to do was that when a motion was brought which was good, yet they did not want it, they would not reject it - but they would manipulate it to change the meaning. A motion was the property of its promoter and any amendment which changed the essence of the motion defeated the reason for the promoter of a motion raising it. Rule 96 was designed to protect such rights.

Mr Jeffery said that anyone in Parliament could put forward a motion and motions were not the exclusive prerogative of opposition parties. The issue was that before it came to the vote, why could a motion not be amended, even it was to do a 180 degree turn on the motion? This had already been done in Parliament as that was what was done with the Nkandla motion. The amendments were not to be done prior or after the debate, they were to be done during the debate. The essence of a debate in Parliament was to ensure that the best and most appropriate decision was taken on a particular matter. It was not a matter of a 'yes' or 'no' response to a particular Member.

Mr Ambrosini said that a Member could not initiate a Private Member's Bill every time he wanted to expose the faults and weaknesses of the policies of his opponents. That could however be done with motions and the amending of these motions was going to take away the power and rights of the promoter of the motion.

Ms Killian said that she wanted Rule 96 to remain so that it was not possible to change the meaning of a motion so that it meant the opposite.

The Chairperson said that a Member may propose a motion and the general House agrees with the broad ideas of the motion but there were a few words which needed amendment. The Members of the House could not be denied the right to deal with the broader aspects of the motion but yet amending certain issues therein. How was that going to undermine democracy and the protection of minorities?

Mr Jeffery said that individual Members and parties should be allowed to table motions and to have those motions debated. That was the expression of minority rights. An amendment which should not be allowed was an amendment where the House debated on one issue but ended up having to vote on another issue.

Ms Seaton said that she agreed with what was being said by the opposition parties. If there was an issue at hand, Members had to be man enough to either vote for it or vote it down.

Mr Ellis said that he understood the frustration of the opposition that they feared their motions could be turned around in the name of amendments. This did not mean that Members could be deprived of the right to amend a motion in the House. This was a controversial matter and its complexity necessitated that some lessons be drawn from other countries. This was a perfect situation where a study should be done on how the rules of other parliaments deal with the matter.

Mr Hahndiek said that there was an important point which was being missed. A draft resolution was a proposal that the House adopted as a certain decision. It was proposing a decision by the House. A Member may be the promoter of a motion but once the motion was moved in the House, it was no longer the property of the Member. It became the property of the House and the House had to decide as a collective on what decision to take. To deny the House the ability to amend a motion was frustrating the ability of the House to take a decision.

Mr Ambrosini said that the problem was going to be the determination of who says that an amendment was minor or was just an improvement as opposed to a major change in the motion. His proposal was that the presiding officer could allow for the addition of minor words to facilitate its debate or for clarity. Secondly, the promoter of the motion must agree to the amendment.

Mr Jeffery said that the discussion was going around in circles. The general agreement was that amendments could be made to a motion. The difference was the extent of the amendment of the motion. It was all politics and it did not matter who was the majority and who was the minority. It may be useful to look at other countries. However, it was unreasonable to say that if a Member introduced a bill or a motion, he had to approve every amendment to the bill or motion. That could not be the case as once a motion or bill was tabled, it thereafter belonged to the House.

The Chairperson said that the way forward was to find out how parliaments around the world deal with this matter, as proposed by Mr Ellis. Very simple answers could be found through some research and by drawing on lessons from other countries.

Rule 97
Mr Jeffery said that committee reports were either adopted or noted. When committee reports were adopted, they become the decision of the House but if they get noted, the House merely takes notice. The House would note when there was a problem with the content of the report. Rule 97E was proposing that there should be a debate on the committee report and then a Member could get up, without notice and move a draft resolution. He was worried as this was not the practice. The practice was that, if the House wants to adopt the report and the report did not say what the House wanted it to say, it would be sent back to the Committee to change it. His fear was that it could have unforeseen consequences and technical problems for the House.

Mr Hahndiek said that in terms of practice, it was the Chief Whip of the majority party who moved for that adoption of the report.

Ms Killian asked if the Task Team was the right place for this discussion on Committee Reports. Was there the need for a specific adjustment of that rule?

Mr Jeffery said that the issue was dealing with motions without notice and notice was not required to refer a report back to a committee.

Ms Seaton said that she had a problem with the insistence that it must be the Chief Whip to propose the adoption of a committee report. If Ministers could put forward Bills for adoption, why could Committee Chairpersons not put forward their committee reports for adoption. The question was whether the Chief Whip read every one of the Committee Reports which passed on his table because she had seen reports go through which should never have gone through.

Mr Jeffery said that Ms Seaton had misunderstood the issue. The Chair of the Committee would present the report as a minister would present a bill. The issue was that notice was not required for the Chief Whip to propose a draft resolution on that report. Thus it was not the Committee Chairperson to say that the House must adopt the report. The reason was that the Committee Chairperson could be married to what was in the report and not willing to identify errors in it. It was thus safer for the Chief Whip to do the proposal.

Mr Ambrosini said that the discussion was difficult because it had to do with “what ifs”. When faced with such a situation, the way out was to stick with the principle. There was no reason to think that the Chief Whip was more balanced than a Committee Chairperson. Errors could take place on both sides.

The Chairperson said that the issue was to guard against errors in Parliament. The question was to ascertain who moves for the adoption of report by the House.

Mr Jeffery said that he proposed that the Chief Whip should move for the adoption, noting or 'referral back to the Committee' of Committee Reports by the House.

Ms Seaton said that she was still not convinced it was better to have the Chief Whip instead of a Committee Chairperson propose the adoption of Committee Reports.

Mr Jeffery said that Ms Seaton was not a Member of Parliament so she was present not to take decisions but simply to give advice.

Ms Seaton said that she was aware of her position and did not need Mr Jeffery to remind her or give her advice in that regard.

Mr Jeffery said that there should be some sort of guide given to the Speaker with regards to the length and nature of draft resolutions. Motions had to be in accordance with the guidelines approved by the Rules Committee.

The Chairperson said that the guidelines had to be in line with the Rules.

Mr Jeffery said that what he was saying was that there should be reference in the Rules for guidelines to draft resolutions and motions as adopted by the Rules Committee. This was to avoid a situation "where the initiating Member gets forgotten and the entire process takes an undesired turn".

Mr Ambrosini said that there was a need to have a sense of the hierarchy on the sources of law. If there was anything outside the Rules, it had to be consistent with the Rules and had to be able to supplement the Rules. A guideline was something to be followed if one wanted to.

Mr Perran Hahndiek said that the guidelines were developed because it was discovered that some practices were deviating from the Rules and good practice. The key issues should be included in the Rules. Guidelines could be looked at in respect of definitions and sources of authority.

The Chairperson said that the Rules were going to cover the basics but it had to be noted that the Rules could not cover everything so the guidelines had to supplement the Rules.

Rule 98
Mr Jeffery said that in terms of Rule 98, he had a query with Rule 98B. This provided that if a motion was delivered after 12 noon, then it must be sent to the next sitting day whereas, in fact the objective was to say that the motions had to be delivered before 12 noon. Furthermore, it was not the next sitting day but the following day.

Mr Hahndiek said that order papers were only printed for sitting days.

Rule 99
The Task Team agreed that there was nothing to deliberate or change in Rule 99.

Rule 100
Mr Jeffery said that the only thing was to improve the wording of the Rule. On the question of privilege, the Task Team had dealt with it earlier by saying that there should be some control to the concept.

Mr Kaspar Hahndiek said that he hoped that there was general agreement on the fact that privilege referred to the issues as defined in the Constitution and nothing else.

Rule 101
The Task Team agreed that there was nothing to be changed in the Rule.

Rule 102
Mr Jeffery said that the title was Withdrawal And Lapsing Of A Motion but the content dealt with withdrawal and no reference to lapsing at all. There needed to be a lapsing item in it.

Ms Kalyan asked for clarity as to under which Rule was the aspect of constitutional motions going to be brought.

The Chairperson replied that it had been dealt with under Rule 94.

Ms Killian asked what the position of the Task Team was regarding the insertion of motions of condolences in the Rules.

Mr Ambrosini said that there was no reason to include motions of condolences into the Rules as those could be regulated by internal regulations.

The Chairperson said that the Task Team was going to deliberate on Chapter 8 during its next meeting at 2pm on 13 February 2013. He said that the intention was to complete the work of the Task Team by June 2013.

The meeting was adjourned.