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AD HOC COMMITTEE ON POWERS AND PRIVILEGES
12 March 2003
TENTH DRAFT OF POWERS AND IMMUNITIES OF PARLIAMENT BILL: CONSIDERATION
Chairperson: Mr PC Hendrickse (ANC)
Documents handed out:
Powers and Immunities of Parliament Bill (excluding provinces)
Powers and Immunities of Parliament Bill (including provinces)
Legal Opinion by Adv Anton Meyer on Clause 19 of the ninth draft
Members discussed the changes to the latest draft of the Powers and Immunities of Parliament Bill. There was some discussion on whether or not Members were exempt from prosecution, placing them above the law. It was concluded that a clear distinction should be made between what constitutes misconduct and what constitutes criminal behaviour.
Three main changes were discussed. Firstly, Clause 18, which deals with the privilege of witnesses. Secondly, whether Clause 19 should remain as is, applying to the public and members, or whether it should exclude members. Thirdly, Clause 28 in which Members could potentially be tried by Parliament and the public prosecutor.
After the main changes were pointed out a discussion followed about the ethical implications of a Member of Parliament being "exempt" from being tried like any normal citizen. The point was made that MP's cannot go to jail, they can only be sanctioned by Parliament. On the other hand, it was reiterated that Members also should not be tried by both Parliament and the public prosecutor.
Adv A Meyer responded that, right from the outset and according to existing legislation, the distinctions were not clear. Members agreed that the right distinction had been made, but they were not sure about whether the right clauses are in the right places.
A Member brought up the fact that some offences are clearly a criminal matter and some are merely misconduct. They could pick up constitutional problems because parliamentarians could be construed as being above the law. Therefore, the distinction between an MP and a member of the general public should be very clear. It was agreed that this could be seen as being unconstitutional and therefore required much deliberation.
A Member noted that if you could steal R 1 million and the worst that could happen to you would be a slap on the wrist in the form of only forfeiting a months salary, it could be more profitable to take the money and forfeit one month's pay.
Adv Meyer responded explained that the Corruption Bill incorporates more stringent punishment with regards to corruption. A clear distinction should be made between what constitutes misconduct and what constitutes criminal behaviour. Under Clause 6 the House must decide whether to refer the matter to the public prosecutor.
A Member also noted that suspicion of misconduct blurs the policy line.
In addition to this, Ministers earn more than Members. Therefore different sets of circumstances should have different fines attached to them.
Clause 18(1) was then discussed and it was recommended by Adv Meyer that when a person appears before a committee by summons the normal rules of a court of law should apply.
Concerns over Clause 18(2) were also expressed. It may give the public license to say what they like about Members get away with it. This issue raised concern over the protection of MP's and it was stated that the public should be under oath when addressing committees. Perhaps a rewording of sub-section 2 of Clause 18 is required.
In addition to this, it was also noted that the Bill could be seen as being unconstitutional through its intervention in provincial legislatures. It was recommended that perhaps there should be a separate Bill dealing with provincial legislatures. It was also suggested that certain chapters could apply to the provinces and other chapters not.
A Member asked whether the same rules would apply if an MP was working for the African Parliament. Another issue raised was the power of the Speaker of Parliament to act. These questions will be further debated in the next meeting.
The meeting was adjourned.
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