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AD-HOC COMMITTEE ON POWERS AND PRIVILEGES OF PARLIAMENT
26 February 2003
NINTH DRAFT OF POWERS AND IMMUNITIES OF PARLIAMENT BILL: CONSIDERATION
Chairperson: Mr P Hendrickse (ANC)
Documents handed out:
Powers and Immunities of Parliament Bill (Ninth Draft)
The Committee considered the ninth draft of the Powers and Immunities of Parliament Bill. Discussions focussed on Clause 18 of the Bill and whether the Bill should provide that witnesses who are summoned to appear before Parliament or a Committee will be compelled to answer any questions or produce any necessary document. Members agreed that this provision would be constitutionally sound. However, one of the issues that remained contentious was whether it was constitutional for Parliament to legislate for Provinces on matters other than immunities and privileges. Members agreed that there was a need for a legal opinion on that aspect.
The Chairperson informed Members that both the eighth and ninth draft remained the same except for Clause 19. A copy of the ninth draft had been sent to all Members of Parliament for comments but so far the Committee had not received any response. The Chairperson pointed out that the tenth draft would be voted on after the meeting has been furnished with legal advice on certain aspects of the Bill and thereafter anyone who wants to effect any changes to the proposed Bill would have to do it through the NCOP.
The Chairperson referred to the previous meeting of the Committee in which Members had pointed out that witnesses were given too much protection. For example, he pointed out that witnesses were protected for giving incriminating evidence.
He drew the attention of Members to option 2 contained in Clause 18 of the Bill which provides as follows. A person who has been summoned to appear before Parliament or a committee to give evidence or to produce a document is compelled to answer any question out to him/her. They are also compelled to produce any document in connection with the subject matter of the inquiry. He pointed out that this provision would be subject to the proviso contained in 18(1)(c). This proviso states that before a person may be required to answer or produce a document which may incriminate that person, the Chairperson must consult with the National Director of Public Prosecution who has jurisdiction.
The Chairperson asked Members if the above option was constitutionally acceptable.
Adv Meyer (Chief Legal Advisor) affirmed that there was nothing unconstitutional about the above option. He pointed out that option 2 in Clause 18 only prevented the prosecutor from obtaining evidence through Parliament, for example, through confession, but it did not deter the prosecutor from getting evidence through other means, for example a bank statement, in the case of fraud.
A Member noted that option 18(2)(c) sounded better as it was practically applicable. However she wanted to know whether compelling a witness did not amount to some form of a duress.
The Chairperson asked whether Clause 19 therein should apply to all Members as well as to non Members.
Adv Meyer conceded that in the case of a Member who has been summoned to be a witness or was guilty of contempt or a punishable offence in Parliament, it would be appropriate to take the matter to a disciplinary committee. But if a member of the public committed any of the above offense they would be punishable through the normal court procedure. Mr Meyer suggested that Clause 19 had to be changed to this effect: that "a person other than a member who has been duly summoned in terms of section 16 and who fails without a sufficient cause to attend at the time and place specified in the summons commits an offence and is liable to a fine or imprisonment not exceeding 12 months". The offence in Clause 7 would be dealt with internally as opposed to by a court of law.
Mr Cassim (IFP) pointed out that it was still uncertain whether Parliament could legislate for provinces on matters that fell outside the ambit of the Constitution. For example, matters other than immunities and privileges. He then proposed that there was a need for an outside legal opinion on that aspect.
Mr Becker pointed out that the instructions to the legal advisors had to be very clear. They had to specifically look at whether it would be constitutional for the proposed Bill to provide for matters that did not fall within the ambit of the Constitution. For example, the precincts of legislature. If the opinion comes out saying that Parliament could not legislate, Mr Becker asked if that would mean that Parliament needed two separate Bills.
The Chairperson informed Members that once the instructions have been drafted they would be circulated among Members for comment.
Mr Cassim (IFP) requested the Chairperson to send the proposed Bill formally to the NCOP and inform Members of the NCOP that there had been formal deliberations on the Bill. The Committee would then wait for their reservations.
Mr Becker pointed out that Mr Cassim's suggestion would not resolve the problem because the question still remained as to whether it was constitutional for Parliament to legislate for Provinces on their internal matters.
Mr Meyer (Chief Legal advisor), responding to this concern, affirmed that Parliament could legislate on immunities and privileges. However, in so far as the Bill did not deal with powers, immunities and privileges it was not clear whether Parliament could legislate in that regard.
The Chairman pointed that the Members of the Committee would be able to formally vote on the Bill after they have been furnished with the legal opinion on that area of uncertainty.
The meeting was adjourned.
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