The sub-Committee dealing with the review of the draft National Assembly Rules was given details of the policies and procedures adopted by several foreign parliaments when reviewing rulings of Presiding Officers on points of order, as well as their impeachment processes.
In his introductory remarks, the Chairperson told Members that the courts should not be the first point of call because they did not make rules and policies. Members should instead engage and persuade each other on whatever issues they thought they differed on. The rules belonged to Parliament and should be agreed upon by all Members of the Parliament, and be observed.
Members then heard how the parliaments of the United Kingdom, Australia, New Zealand, Canada, the United States of America, Kenya, Ghana, and Lesotho reviewed rulings of Presiding Officers on points of order, and the steps which could be taken to deal with members who were guilty of disregarding his authority, or of grossly disorderly conduct.
They were also provided with information relating to impeachment procedures of a president in foreign jurisdictions, featuring examples from Nigeria, Ghana, India, Korea, the United Kingdom and the United States of America.
Members of the Economic Freedom Fighters (EFF) on the sub-Committee raised objection to the fact that they had not received a summary document of what had been discussed at previous meetings. The Chairperson pointed out that a document would be presented to Members. Everything would be captured on what had been agreed upon, and this would include the views of the opposition. The document was going to contain details and summaries. The report would be presented to the Rules Committee, chapter by chapter.
The EFF said that the Speaker saw herself as the first line of defence. This made her biased and partisan -- by her own admission. Provisions of Rules 51, 52 and 53 seemed to be eroding the rights of Members to speak freely. Rule 51 dealt with “withdraw,” but the ruling party had changed the wording to “leave the chamber”. The intention of the ruling party was to suppress robust debate in Parliament. The EFF rejected all the provisions because they shut down vocal voices. It was rejecting the rules because they were abusive, repressive and unjust.
The Chairperson said that Members were taken out of the House when they misbehaved, not because they were engaging with the ANC when trying to persuade it. It was wrong for a Member not to observe the orders of the presiding officer. The rules covered everyone. The rules had been drafted to accommodate the opposition. It was important as well for the opposition to draft the rules as if they were in government.
The proposal of the EFF that a retired judge should chair the Parliamentary Disciplinary Committee was also discussed. The Chairperson said the matter would be referred to the Rules Committee.
In his introductory remarks, the Chairperson told Members that the courts should not be the first point of call because they did not make rules and policies. Members should instead engage and persuade each other on whatever issues they thought they differed on. The rules belong to Parliament and should be agreed upon by all Members of the Parliament, and be observed.
The Chairperson reflected on things that had been discussed in the previous meetings, and which still needed to be discussed. These issues were around the rules that were optional: the questioning of Deputy Ministers by Parliament, because they account to it; the allocation of three hours to the question time of the Deputy President; increasing the number of questions to the Deputy President to six, and letting the Deputy President account on national and international issues; and increasing the quorum for the Rules Committee to six, and that alternative Members be listed.
Investigation into review of rulings of Presiding Officers on points of order by other parliaments
Mr Victor Ngaleka, Parliament Procedural Advisor, briefed the Committee on whether parliaments in other jurisdictions allowed for the review of the decisions or rulings of presiding officers on points of order. Countries chosen for the study were the United Kingdom, Australia, New Zealand, Canada, United States of America, Kenya, Ghana, and Lesotho.
Standing Order 43 of the House of Commons empowers the Speaker to order any member to withdraw from the House for the remainder of the sitting day for disregarding his authority or grossly disorderly conduct. But if the Speaker is of the opinion that the powers under this provision are inadequate to deal with the conduct, the Speaker may name the member and follow the procedure prescribed by Standing Order 44. The exercise of this power may not be reviewed.
If a member has been suspended under Standing Order 44, his/her suspension on the first occasion is for five sitting days, and on the second occasion it is for twenty sitting days, but on any subsequent day, until the House resolved to terminate the suspension of the member. The salary of the member who has been suspended is withheld for the duration of the suspension.
The Standing Orders provide the Speaker with disciplinary powers to maintain order. These vary in their severity and allow the Speaker to deal with breaches of order in the most appropriate manner. According to Standing Order 94(a), the Speaker may direct a member to leave the chamber for an hour. This is considered a lighter alternative to naming.
Standing Order 87 provides that if a member dissents from a ruling of the Speaker, the objection or dissent must be declared at once. A member moving for a motion of dissent must submit the motion in writing. If the motion is seconded, the Speaker must then propose the question to the House, and the debate may proceed immediately for 30 minutes. No amendment may be moved on a motion, as a ruling must either be accepted without qualification or rejected.
For major offences or persistent defiance of the Chair, a member may be named by the Speaker. The naming of a member is an appeal to the House to support the Speaker to maintain order. Following the naming of a member, the Speaker immediately puts the question to the House that the member be suspended from the services of the House. The suspension is for 24 hours. In terms of Standing Order 94(b), no amendment, question or debate is allowed on the question. The House votes on the question.
The ability to appeal a ruling of the Speaker ended in the House of Commons in 1965. Under Standing Order 11(1), the Speaker has the authority to name a member and order him or her to withdraw from the House for the remainder of the sitting.
Alternatively, after naming the member but before ordering the member to withdraw, the Speaker may ask the House to decide what disciplinary action should be taken against the member. This involves a motion to suspend a member from the service of the House for a specified period. Such a motion is neither debatable nor amendable.
In terms of Standing Order 88, once the Speaker has ruled on a point of order that is the end of the matter. A member can not challenge the ruling.
United States of America
Any member who disagrees with the ruling of the Speaker can challenge it and ask members to decide by a majority vote whether the House will agree to be bound by the ruling. The appeal must be made immediately after the ruling has been given. Clause 5 of House Rule 1 states in part that the Speaker shall “decide all questions of order, subject to appeal by a Member, Delegate or Resident Commissioner.” Any member wishing to invoke this right simply stands and announces, before any business has taken place, that he or she appeals the ruling of the Chair.
Debate is permitted for an hour. However the House can end the debate on appeal by voting to order the previous question, which if approved would end the debate on the matter. The Speaker puts the appeal to a vote by phrasing the question in the following way: “The question is, shall the decision of the Chair stand as the judgement of the House?”
Some decisions by the Speaker are not subject to an appeal, such as a decision about whom to recognise. In the House of Representatives, appeals from the rulings of the Chair are infrequent.
The Speaker is empowered by Rule 98 to maintain order in the House. In terms of Rule 107 (2), the Speaker may order a member whose conduct is grossly disorderly to withdraw immediately from the precincts of the Assembly on the first occasion for the remainder of the sitting of that day. On second or subsequent occasions during the same session, the Speaker may order the member to withdraw from the precincts for a maximum of three days, including the day of suspension. The decision is not reviewable.
If the Speaker feels his or her powers under Rule 107 are inadequate for the offence committed, or the member persistently and wilfully disobey his or her authority, the Speaker may name the member in terms of Rule 108. When a member has been named by the Speaker, a motion is moved by any member present that such a named member be suspended from the service of the House, and the Speaker immediately puts the question for decision. There is no debate, amendment or adjournment allowed.
A named member is suspended on the first occasion for four sitting days. On the second occasion during the same session, the member is suspended for eight days, and on the third or any subsequent occasion during the same session, the member is suspended for twenty-eight days. A member who has been ordered to withdraw under Rule 107 or suspended from the service of the Assembly under Rule 108 forfeits all allowances payable during the period of such suspension.
Standing Order 96 vests the Speaker with the responsibility of ensuring that order is observed in the House and to enforce the rules of debate. It further states that the decision of the Speaker on any point of order is not open to appeal and may not be reviewed by the House, except by way of a substantive motion made after a notice.
The Speaker is empowered by Standing Order 98 to order a member whose conduct is grossly disorderly to withdraw from the House for the remainder of the sitting of the day. If the Speaker deems the order to withdraw is inadequate, the Speaker may name the member. When a member has been named by the Speaker, a motion is immediately proposed by the Leader of the Majority “that such a member is guilty of contempt of Parliament.” Where a member is found guilty of contempt, the member is suspended form the service of the House. On the first occasion, the member is suspended for five sitting days. On the second occasion, the member is suspended for ten sitting days, and for subsequent occasions for fourteen sitting days.
Rule 48 vests the Speaker with the responsibility of ensuring that the rules of order in the House are observed. This Rule states that the decision of the Speaker on a point of order is not open to an appeal and is not reviewable by the House, except on a motion made after notice.
The Speaker is empowered by Rule 49 (2) to order a member whose conduct is grossly disorderly to withdraw immediately from the House for the remainder of the sitting of the day. If the Speaker deems the order to withdraw is inadequate, the Speaker may name the member. When a member has been named by the Speaker, a motion is immediately proposed by the Leader of the Majority “that such a member is guilty of contempt of Parliament.” Where a member is found guilty of contempt, the member is suspended from the service of the House, and the Speaker immediately puts the question for decision. There is no debate, amendment or adjournment allowed.
Impeachment Procedures in Foreign Jurisdictions
Mr Enver Daniels, Chief State Law Adviser, provided the Committee with information relating to impeachment procedures of a president in foreign jurisdictions. His presentation featured examples from Nigeria, Ghana, India, Korea, United Kingdom and the United States of America.
Regarding the removal of the president, he indicated that Section 89 of the Constitution states that the National Assembly, by a resolution adopted with a supporting vote of at least two-thirds of its members, may remove the President from office only on the grounds of a serious violation of the Constitution or the law; serious misconduct; and inability to perform the functions of office.
Section 143 of the Constitution governs the impeachment of the President. Section 143.3.11 of the Constitution of Nigeria sets out the procedure for the removal of the President and the Vice Presidents as follows:
Within 14 days of the presentation of the notice to the President of the Senate, each House of the National Assembly shall resolve by motion without any debate whether or not the allegation shall be investigated.
A motion of the National Assembly that the allegation be investigated shall not be declared as having been passed, unless it is supported by the votes of not less than a two-thirds majority of all the members of each House of the National Assembly.
Within seven days of the passing of a motion under the foregoing provisions, the Chief Justice of Nigeria shall at the request of the President of the Senate appoint a panel of seven persons who in his opinion are of unquestionable integrity, not being members of any public service, legislative house or political party, to investigate the allegation.
The holder of an office whose conduct is being investigated under this section shall have the right to defend himself in person and be represented before the panel by legal practitioners of his own choice.
A panel appointed under this section shall have such powers and exercise its function in accordance with such procedures as may be prescribed by the National Assembly, and within three months of its appointment must report its findings to each House of the National Assembly
Where the panel reports to each House of the National Assembly that the allegation has not been proved, no further proceedings shall be taken in respect of the matter.
Where the report of the panel is that the allegation against the holder of the office has been proved, then within 14 days of the receipt of the report at the House, the National Assembly shall consider the report. If by a resolution of each House of the National Assembly, supported by not less than a two-thirds majority of all its members, the report of the panel is adopted, then the holder of the office shall be removed from office as from the date of the adoption of the report.
Article 69 of the Constitution of Ghana deals with the procedure to be followed when the President is removed from office. The provision is as follows:
The President shall be removed from office if he is found to have acted in wilful violation of the oath of allegiance and the presidential oath set out in the Second Schedule to, or in wilful violation of any other provision of, this Constitution, or to have conducted himself in a manner which brings or is likely to bring the high office of the President into disrepute, ridicule or contempt; or prejudicial or inimical to the economy or the security of the State; or is incapable of performing the functions of his office by reason of infirmity of body or mind.
For the purposes of the removal from office of the President, a notice in writing is signed by not less than one-third of all the members of Parliament, stating that the conduct or the physical or mental capacity of the President be investigated on any of the grounds specified in the article, and shall be given to the Speaker who shall immediately inform the Chief Justice and deliver the notice to him, copied to the President.
The notice shall be accompanied by a statement in writing setting out in detail the facts, supported by the necessary documents on which it is claimed that the conduct or the physical or mental capacity of the President be investigated for the purposes of his removal from office.
The Chief Justice shall, by constitutional instrument, immediately convene a tribunal consisting of the Chief Justice as Chairman and the four most senior Justices of the Supreme Court, and the tribunal shall inquire in camera whether there is a prima facie case for the removal of the President.
Where the tribunal determines there is a prima facie case for the removal of the President, the findings shall be submitted to the Speaker of Parliament through the Chief Justice and copied to the President.
The Parliament shall, within 14 days after the date of the findings of the tribunal, move a resolution whether or not the President shall be removed from office.
The resolution for the removal from office of the President shall be by a secret ballot and shall be taken to be approved by Parliament if supported by the votes of not less than two-thirds of all the members of Parliament after prior debate.
The President shall cease to hold office as President on the date the Parliament decides that he or she be removed from office.
Article 61 of the Constitution of India provides the following:
When a President is to be impeached for violation of the Constitution, the charge shall be preferred by either House of Parliament.
No such charge shall be preferred unless the proposal to prefer such charge is contained in a resolution which has been moved after at least 14 days’ notice in writing and signed by no less than one-fourth of the total number of members of the House who have given their intention to move the resolution, and such a resolution should have been passed by a majority of not less than two-thirds of the total number of members of the House.
When a charge has been so preferred by either House of Parliament, the other House shall investigate the charge or cause the charge to be investigated and the President shall have the right to appear and to be represented with details of the investigation.
If as a result of the investigation a resolution is passed by a majority of not less than two-thirds of the total membership of the House by which the charge was investigated or caused to be investigated, declaring that the charge preferred against the President has been sustained, such a resolution shall have the effect of removing the President from his office as from the date on which the resolution is so passed.
Republic of Korea
The impeachment of the President of Korea is regulated by the Constitutional Court Act, the National Assembly Act and the Constitution. The Korean Constitution stipulates that the National Assembly may pass a motion for the impeachment of the President if he or she has violated the Constitution or other Acts in the performance of duties.
Under Article 130 (1) of the National Assembly Act, the Speaker of the National Assembly is required to inform the Assembly immediately when a proposition of impeachment prosecution is filed. The proposition may be referred to the Legislation and Judiciary Committee for investigation by a resolution.
If the Assembly fails to refer the proposition motion to the Legislation and Judiciary Committee, the motion will lapse when it has not been voted by a ballot at the plenary session of the Assembly within 24 to 72 hours of the filing of the motion. If the proposition motion is referred to the Legislation and Judiciary Committee, the Inspection and Investigation of State Administration applies mutatis mutandis to the investigation of the committee.
The Korean Constitution requires that a motion for impeachment of the President shall be approved by two-thirds or more of the Members of the National Assembly. When the National Assembly passes the impeachment motion, the Speaker is required to notify both the chairman of the Legislation and Judiciary Committee and the Constitutional Court. The power of the President will automatically be suspended.
The Constitutional Court of Korea has jurisdiction over impeachment proceedings. Under the Constitutional Court Act, the Court must hear oral arguments when adjudicating on impeachments and must abide by the “laws and regulations relating to the criminal litigation mutatis mutandis during the proceedings. The chairman of the Legislation and Judiciary Committee of the National Assembly acts as the impeachment prosecutor before the court.
In order to confirm the impeachment, six out of the nine justices of the Constitutional Court must vote in favour. Before making such a decision, the Constitutional Court must prove that “there is a valid ground for the petition for impeachment adjudication. Any person removed by impeachment is prohibited from being a public official for the next five years.
The 1967 Select Committee on Parliamentary Privilege of the House of Commons recommended that the right to impeach should be formally abandoned and legislation be introduced for that purpose. However, no such legislation was introduced. A Joint Committee on Parliamentary Privilege in 1999 stated that “the circumstance in which impeachments have taken place is now so remote from the present that the procedure may be considered obsolete.” Although the power to impeach is now of historical rather than current interest in the UK, this power has not been formally abolished. However, there are legal procedures for impeachment in the UK.
In the English system, the impeachment is initiated in the House of Commons, while the trial is held in the House of Lords. The House of Commons determines when an impeachment should be instituted. The process starts with an MP charging the accused with high treason or certain other crimes and misdemeanours, and providing supporting evidence. The MP may then move for impeachment.
If the accusation is found to have sufficient grounds to justify further proceedings, the motion is put to the House of Commons. If the motion is agreed to by the House of Commons, one or more MPs are ordered by the House of Commons to go to the bar of the House of Lords. In the name of the House of Commons, the MPs impeach the accused person. A committee of the House of Commons is then appointed to draw up articles of impeachment which are debated. When an agreement is reached, the articles are delivered to the House of Lords.
After receiving the articles, the House of Lords may ask the accused for written answers. The House of Lords communicates the answers received to the House of Commons. The House of Commons may send a reply to the House of Lords. The trial is set at the House of Lords. The House of Commons appoints ‘managers’ (prosecutors) for the trial to prepare the evidence but it is the House of Lords that summons witnesses. The accused may call witnesses and is entitled to defence by counsel. If found guilty, the judgment is not pronounced unless and until it is demanded by the House of Commons. An impeachment may continue from one parliamentary session to another, or over dissolution. Conviction under the old English impeachment system could result in punishment by imprisonment, fine or even death.
United States of America
Under Article 1, Section 2, Clause 5 of the US Constitution, it is stated that “the House of Representatives shall have the sole Power of Impeachment.” The basic procedures to be followed by the House are prescribed in the Constitution.
The impeachment process may commence in the House by a Member making a charge of impeachment on the floor on his own initiative, by a Member presenting a memorial listing charges under oath, or by a Member depositing a resolution in the box used for collecting resolutions, which is then referred to the appropriate committee.
If it is a resolution impeaching a specific person, it would usually be referred to the House Judiciary Committee. If it is a resolution requesting an inquiry into whether impeachment would be appropriate to a particular person, it would usually be referred to the House Committee on Rules, which would then refer it to the House Judiciary Committee.
The impeachment process may also be triggered by non-Members, such as by charges from a state or territorial legislature or grand jury, by an independent counsel advising the House of any significant information which he believes might constitute grounds for impeachment, by petitions, or by the Judicial Conference of the US when the impeachment involves a federal judge.
Although the House Judiciary Committee usually conducts impeachment investigations, such matters can be referred to another committee or to a special or select committee. In addition, the House Judiciary Committee may refer an impeachment investigation to one of its sub-committees or to a specially created sub-committee.
The House Judiciary Committee will propose an impeachment resolution with articles of impeachment if it determines that grounds for impeachment exist. Articles of impeachment are detailed statements of alleged violations that require, in the view of the House, the removal of the President from his post. The proposed impeachment resolution has to be agreed to by a majority vote of the House Judiciary Committee, which must be accompanied by a written report of the Committee containing minority views of Committee members.
The impeachment resolution will be reported to the full House of Representatives and debated. The House may consider the resolution as a whole, or may vote on each article separately. The House may vote to impeach even if the House Judiciary Committee does not recommend impeachment. A vote to impeach by the House requires a simple majority of those present.
If the House votes to impeach, impeachment managers are appointed through the adoption of a privileged resolution. The House will also adopt a resolution to notify the Senate. When the Senate is ready, the appointed managers will appear before the bar of the Senate to impeach the individual involved and exhibit the articles against him.
According to Article 1, Section 3, Clause 6 of the US Constitution, “the Senate shall have the sole Power to try all Impeachments. When the President of the US is tried, the Chief Justice shall preside.”
Impeachment proceedings in the Senate are governed by the Rules of Procedure and Practice in the Senate when sitting on Impeachment Trials. The Senate may amend or modify the impeachment rules. In impeachment trials, the full Senate may receive evidence and take testimony, or may appoint a committee to serve this purpose.
During the course of trial, evidence is presented and witnesses may be examined and cross-examined. The Senate has not adopted standard rules of evidence for use during an impeachment trial. The Presiding Officer possesses the authority to rule on evidence and incidental questions. However, the Presiding Officer may also choose to put any such questions to a vote before the Senate.
After the managers and counsel for the accused have made their closing arguments, the Senate deliberates the impeachment in a closed session. The Senate will then vote on the articles of impeachment in an open session. A conviction on an article of impeachment requires a two-thirds vote of those Senators present. If convicted on any article of impeachment, the President is automatically removed from office. The Senate is not required to vote on all the articles. The Senate can decide not to vote on the remaining articles if the accused has already been convicted on one or more of the articles.
The Chairperson informed Members that the sub-Committee broadly agreed on most items discussed and was aware of the matters that the EFF was not happy about, and such matters would be taken into consideration.
Ms H Maxon (EFF) requested that the EFF be given the minutes of what had been discussed in the previous meeting because the party did not agree with some of the issues discussed.
Mr N Matiase (EFF) supported Ms Maxon. He said it was important that the conventions and practices of Parliament should be reviewed. Rules were important for engagement between political parties, but they should not be used for the purpose of causing chaos. Rules governing unforeseen eventualities should be reviewed, and some rejected. Therefore, it was important that the EFF be given the summary document of what had been discussed in the previous meeting.
Mr Kasper Hahndiek, Consultant to Parliament, informed Members that a summary document would be made available to Members within five days.
Mr M Booi (ANC) said that consensus would be reached by the Members even if there were issues that the Committee did not agree on. A summary document would be sent to Members but it would take a lot of time to present it because some Members would point out things that they differed on, and this would take a lot of back and forth discussions.
The Chairperson pointed out that a document would be presented to Members. Everything would be captured on what had been agreed upon, and this would include the views of the opposition. The document was going to contain details and summaries. The report would be presented to the Rules Committee, chapter by chapter. That was why the sub-Committee had been given two years to exist because if all the decisions were reviewed, the Committee would end up with no decisions at all, and that would take four years to complete. He said Members should raise their critical concerns and let the Committee debate them.
Mr Matiase insisted that the EFF should be given the minutes for accounting purposes. The party was not going to change its stance on things it was not happy with. The EFF was not going to be bullied by hawkish behaviour.
Ms N Mazzone (DA) said that the Committee should not be held to ransom by people who chose not to attend meetings. Parties had been invited to attend the sub-Committee meetings but they had chosen to chop and change representatives and not to attend meetings.
Ms D Dlakude (ANC) suggested that the meeting should focus on other matters, because the EFF had been changing its members continuously.
Ms Maxon asked why it was difficult to present the document to the EFF before it went to the Rules Committee, because the party wanted to reflect The party would continue to fight until the end and was going to take the matter to the Constitutional Court.
Mr Booi suggested that the meeting should go to the next item and not be delayed by the EFF. The Committee had not heard new views from the EFF.
The Chairperson said that the EFF has made a good contribution at the meeting held previously, but it had not presented its view or standpoint as a caucus. He said the meeting should focus on the programme of the day.
Discussion on investigation into review of rulings of Presiding Officers on points of order by other parliaments
Ms Mazzone used the game of football to make her point. She said the decision of the referee was final. It could not be changed. The rules were there. In New Zealand, the Speaker had massive powers but there was an appeal mechanism outside the House. The decision of the Speaker inside the House was final. The Committee needed to discuss the right to appeal the decision of the Speaker and look at the nuts and bolts of this issue.
Mr Matiase remarked that the presentation had focused on the parliamentary systems of the former British colonies. Everything was based on the Roman-Dutch colonial law system. Kenya, Lesotho and Uganda shared the same parliamentary system of their colonial masters. He said the ANC did not want to do away with these colonial systems and it was not prepared to learn anything. The EFF would be guided by the Constitution because SA was not a banana republic. The ANC had forgotten to invoke the experience of negotiating with the National Party (NP) regime for the transition at a time when the NP had been refusing to agree to transition. The ANC now appeared to be doing what the NP had been doing.
Mr Booi indicated that the presentation was from the National Assembly, and not from the ANC. Even if the Speaker ordered one to leave the House, there must be recourse for the person concerned. Condemnation of the ANC was not relevant to the discussion.
The Chairperson said the presentation was there to inform the decision the Committee was going to take regarding the rules. It was clear that all over the world the decision of the Speaker was final. The person who was expelled from the House could make an appeal. This implied there was a need to have a sub-committee to look into the appeal. So when the Speaker ordered one to leave the House, one had to obey the rule and not question anything. It was just like when the referee ordered a player to leave with a red card – the player has to leave. He can cry, he can appeal, but he has to get out. Without order, there would be no democracy and without democracy there would be no order. He said the interim rule dealing with the removal of MPs from the National Assembly should be made permanent. He asked the EFF to point out which rule they disagreed with.
Ms Maxon said it was Rule 70.
Mr Hahndiek proposed that Rule 53 should be reviewed, taking into consideration the incident that had led to Julius Malema being ordered out of the House.
Ms Maxon asked if there was any country quoted in the presentation that made use of security to remove Members from Parliament.
Mr Ngaleke said all the countries quoted made provision for the use of security.
Ms Dlakude said the presentation was a research document that had to be reviewed. If people did not want to listen to the ruling of the Speaker, then security had to be used to protect the other Members.
Ms Maxon told Ms Dlakude that she did not know what she was talking about, especially with regard to Rule 53.
The Chairperson read Members Rule 53. He said the decision of the Speaker binds all Members. Parliament’s security only came in when a Member refused to leave the House when ordered by the Speaker to do so. Rule 53 is actioned when Rule 52 is not observed. When a Member’s name has been mentioned by the Speaker, that is the decision of the House. That was why the Committee needed to look at a sub-committee to deal with an appeal process.
Mr Booi said it was important to listen to what the research paper was saying and to look at the Constitution in respect of how to protect Members and maintain decorum. Isolated incidents should be left alone. There was a need to keep a dignified House and make sure the rights of Members were protected.
The Chairperson said the Committee needed to be clear on guidelines on what needed to be done, especially with regard to Rule 53A.
Mr Matiase commented that in the case of a football game, referees were not players, but regulators. In the case of the National Assembly, the Speaker and presiding officers were politicians. They carried mandates and obligations and the positions of their parties and, as a result, were biased. The football example might make sense, but not in relations to the House. These were the early signs of dictatorship by the African National Congress. He said the EFF did not agree with the insertion of Rule 53A because it brought out elements of violence and intimidation, and did not provide for freedom of expression. This was going to come back and haunt both the ANC and DA. The DA must not worry about the EFF.
Ms Mazzone said that it had been the DA that had pointed out that the Speaker had misapplied Rule 53. The DA was representing many voices which should be heard. If Parliament descended into chaos, then freedom of expression had to prevail, because they represented voices that had voted the DA into Parliament.
Mr Booi pointed out that it was important to protect the dignity and rights of the Members. He had been in the struggle for his own reasons and there was no one who was going to treat him with disrespect. The ANC-led Parliament had maintained multi-partysm. No individual was bigger than he, irrespective of where that individual came from. They were not going to be quietened by violence and insults.
Ms Maxon said that the EFF did not want to be courted into having to accept Rule 53A. It should be stated the EFF was against the rule and that was why the whole matter had gone to the courts.
The Chairperson said the position of the EFF was noted, but the majority decision was going to be taken.
Ms Dlakude said that the position of the ANC was that the interim rule should be made permanent in order to protect other party Members.
The Chairperson said the rule would be taken to the Rules Committee for adoption. If the court opposed it, the rule would be amended accordingly.
Mr Daniels said Rules 51, 52, and 53A (12) had serious implications. Rule 53A(12) should be reviewed, as it was an extreme measure. More needed to be taken into account, especially the composition of the multi-party committee and how it was going to deal with matters. Many countries did leave room for the review of rules and made provision for appeals.
Mr Hahndiek said presiding officers should be given authority to make sure House rules were observed and Members were protected.
Mr Booi reported there had been a perception that presiding officers were unfair to other parties. There was a need to have mechanisms that dealt with such matters. People did make mistakes and sometimes such things were noticeable, as when presiding officers are seen to create chaos in the House. Attempts had been made to use the Chief Whips Forum, but it had been discovered that they made their own rules, and that the Speaker was the main person in the House when there was a sitting. The challenge now was to know how to deal with such cases.
Mr Matiase said the Speaker saw herself as the first line of defence. This made her biased and partisan -- by her own admission. Provisions of Rules 51, 52 and 53 seemed to be eroding the rights of Members to speak freely. Rule 51 dealt with “withdraw,” but the ruling party had changed the wording to “leave the chamber”. The intention of the ruling party was to suppress robust debate in Parliament. The EFF rejected all the provisions because they shut down vocal voices. The ruling party was determined to repeat what the NP had done.
Ms Maxon said the EFF was rejecting the Rules because they were abusive, repressive and unjust.
The Chairperson said that Members were taken out of the House when they misbehaved, not because they were engaging with the ANC when trying to persuade it. It was wrong for a Member not to observe the orders of the presiding officer. The rules covered everyone. The rules had been drafted to accommodate the opposition. It was important as well for the opposition to draft the rules as if they were in government.
Mr Booi said that the state law advisers should give them good advice on the legality of matters and provide case studies so that these could be tabled before the Rules Committee, because the rules were for long-term purposes, not short-term.
Mr Daniels said it was difficult to deal with issues of bias from the presiding officers. Countries like Canada had a way of dealing with these matters.
Ms L van der Merwe (IFP) asked Mr Daniels if there was a way of dealing with issues like the switching off of microphones.
Mr Daniels said presiding officers should try to be composed at all times and not be emotional. The switching off of microphones and expelling a Member from the House were extreme measures. Mechanisms should be found to deal with such matters.
The Chairperson said that the presiding officer was presiding over the issues of the House. The presiding officer was not there to recognise certain Members while conducting the business of the House. The Speaker was not forced to recognise a Member. There was no law which looked into that. The affected Member would then see bias in the Speaker and chaos would start, so it was important to respect the rules. The rules should be debated. The EFF had noted disagreement with Rules 51, 52, and 53. The court would decide about Rule 53, but it would not allow chaos in the House.
Ms Maxon said that the Chairperson was provoking the EFF and killing the spirit that was there and the admission Mr Booi had made.
Mr Matiase, referring to Rule 53A, said Appendix C was constitutionally flawed and instilled fear in Members of Parliament, eroded space for robust debate and slowly introduced authoritarian rule. It was still going to be challenged now and in the future. When the EFF was in government, it would repeal it.
Mr Booi said what was important was the teamwork. The EFF should give the sub-Committee alternatives in writing.
Ms Maxon pointed out that the EFF had always provided alternatives. The EFF was opposing only the issue of bringing security personnel into the House.
Mr Booi repeated his stance, saying the EFF must tell the sub-Committee what to do and provide alternatives to the rules. It was silent on the issue of the dignity of Members.
The Chairperson said that the proposal was to make the interim rule permanent. The EFF had not rejected every rule, except for 51, 52, and 53. Most parties had agreed to the rules. No objection was going to be created if it was not there.
Ms N Louw (EFF) said that the summary document was needed before it went to the Rules Committee so that the EFF was clear on what it suggested. The Chairperson was compromising the position of the EFF by saying it had agreed to all the rules. The EFF wanted to see the document first before it was presented to the Rules Committee.
Ms Mazzone suggested that the sub-Committee should have the draft report before it went to the Rules Committee. Parties should be given more time to make submissions, and these should be presented to the sub-Committee. This was how this issue should be taken forward.
The Chairperson said that no one was opposed to the definitions. The deliberations had to be captured and the report was going to reflect what had been discussed the previous day. Draft Seven would reflect the views expressed at the meeting. The sub-Committee would then look at the draft for final changes and present it to the Rules Committee. The sub-Committee would then brief the Rules Committee on chapters, not on all the rules. There would be no discussion, only voting. The Rules Committee would then take a decision.
Discussion on impeachment procedures in foreign jurisdictions
Mr Hahndiek said that the US example did not have detailed processes that were discussed in advance. Each country had to develop its own procedures depending on the nature of cases arising.
Mr Daniels said that any action taken was subject to constitutional review. The President could take the matter to court. Though the constitution said the National Assembly could make its own rules, it did not say much about the removal of the President. Section 89 needed improvement.
Mr Hahndiek said any Member could forward a motion of no confidence.
Mr Daniels said that Section 89 of the Constitution was not well drafted. He agreed that any Member of Parliament could move a resolution for the removal of the President, but this had to be adopted by a two-thirds majority.
Mr Hahndiek said that Section 89 provided that there must be substantial evidence to pave the way for the removal of the President. He wanted to find out if Parliament would be reneging on its duties if it referred the matter of removing the President to the courts.
Mr Daniels said if there were no constitutional and legal procedures laid down, and there was no two-thirds majority, the matter could be taken to the court. However, the matter could not be taken to court if the majority voted against this.
Mr Matiase remarked that the motion of a vote of no confidence and removal of the President were sensitive matters because such things arose out of gross mistakes. These, he suggested, could be addressed through a secret ballot. Such matters were guided by the conscience of the individual. The rules of Parliament should make provision for a secret ballot.
Ms Maxon said that the use of a secret ballot would help both the ruling and opposition parties, as a person could state his or her views freely. Even within her party they sometimes did not speak with one voice, and this had also been observed in the ruling party.
Mr Booi said that ANC members did not sell each other out. There was no point in going for a secret ballot.
Response to EFF suggestion that a retired judge should chair the Parliamentary Disciplinary Committee
Mr Daniels said that when applying the principles established by the Constitutional Court to the proposal the EFF was making, it would appear that the proposal may contravene the separation of powers. The retired judge would have to preside over cases on such terms as were determined by Parliament, and would be bound by those terms. That alone would be inconsistent with the office of the judge.
He said that the EFF had a chance to appoint a person who was independent of Parliament, such as an advocate or senior law person with a number of years in practice, to chair the Parliamentary Disciplinary Committee.
Mr Booi said the ANC had a constitution and a disciplinary committee. The former member of the ANC Youth League had brought lawyers from outside for his case. It had not worked. Even in this case, it was not going to succeed. Members of Parliament would not want to bring in an outsider to solve internal problems.
The Chairperson said this used to happen around 1999, where there was no need for outsiders to correct an internal matter. No one wanted to have a long disciplinary case.
Mr Matiase expressed his satisfaction with the advice from Mr Daniels. He said that if a member of the opposition was going to appear before a committee comprising the majority members of the ruling party, there was no way that person would succeed. That person would be delivering himself or herself to the gallows, so there had to be a neutral person.
Mr Hahndiek said an advocate or lawyer would not be accountable to anybody because they always received briefs from individuals. He did not see how the advocate proposal would work, because in the previous committee the affected person had the right to bring a person who could represent him or her.
The Chairperson said the matter would be taken to the Rules Committee for discussion.
The meeting was adjourned.
- Impeachment Procedures in foreign jurisdictions: Comparative research document by NA Table staff
- Investigation on review of rulings of Presiding Officers on points of order by other parliaments: Comparative research by State Law Advisors
- NA Rules Subcommittee Proposals: Chapters 1 – 15; Draft Six; Dated 18 September 2015
- Motions without notice – proposed interim rule 97
- Covering Notes: NA Rules Subcommittee Proposals Chapters 1 -15; Draft Six; Dated 18 September 2015
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