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AD HOC COMMITTEE ON POWERS AND PRIVILEGES OF PARLIAMENT
23 June 2003
ELEVENTH DRAFT OF POWERS, PRIVILEGES AND IMMUNITIES OF PARLIAMENT AND PROVINCIAL LEGISLATURES BILL: WORKSHOP
Documents handed out:
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill (Draft 11)
The workshop considered the eleventh draft of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill. Issues discussed included the definitions of parlliamentary precincts and direct financial interest, the distinction between offences and misconduct, and which matters should be referred to the Director of Public Prosecutions (DPP). As all issues were not clarified, the Committee decided to devise a twelth draft and to convene another workshop.
The workshop had been organised so the Committee could better interact and deliberate with other Members. Invited stakeholders included the Presiding Officers of both Houses and the Presidential Council, the Chief Whips of both Houses and the Chairs of other Parliamentary Committees. Adv Meyer, former Legal Advisor to Parliament, had agreed to stay on the Committee until completion of the Bill. The meeting discussed the Bill in its entirety excluding the definition clause.
Mr C Eglin (DA) noted that the present Parliament was not sovereign and thus powers and privileges had to be contained in the Constitution or Rules and Ordinances. The aim of the Bill was to add any other necessary powers and privileges.
Chapter 1: Interpretation and application of this Act
Clause 2: Application of the Act
The Chair asked for clarification regarding those provisions excluding the provincial legislatures in Clause 2(1).
Adv Meyer replied that in terms of S116 of the Constitution, a provincial legislature had the power to determine and control its own internal arrangements, proceedings and procedures and was bound by these.
Mr J Jeffery (ANC) asked whether the National Parliament had the power to legislate over internal procedures of the provincial legislatures, especially in cases not involving a Schedule 5 matter.
Adv Meyer replied that this would be unconstitutional.
Mr Jeffery questioned the latter interpretation of S116 and contended that this section was optional as it did not necessarily give the provinces the power to legislate their internal processes. He said the answer to this Schedule 5 matter could be found in Section 44 of the Constitution on authority of the National Parliament. He contested that it would not be unconstitutional for the National Parliament to legislate a framework regarding parliamentary privilege.
Adv Meyer noted that although he agreed that the National Parliament was not prohibited from legislating any parliamentary privilege, the word "may" in S116(1) embodied a traditional privilege enjoyed by the provincial legislatures in running their internal processes. If the National Parliament interfered with this traditional privilege, this could cause constitutional problems. The Bill should thus provide broad guidelines on the issue but not go into fine detail.
Adv H Schmidt (DA) said attention should be paid to the wording as it empowered the National Parliament in certain circumstances.
The Chair said this matter would be deferred for latter discussion.
Chapter 2: Precincts of Legislatures
Clause 3: Description of Precincts of Legislature
Dr R Davies asked for clarity on the meaning of "exclusively" in Clause 3(1)(c).
Adv Meyer noted that as Parliament sometimes used other places for its meetings, this provision stipulated that such places should only be used for legislative purposes.
Ms B Hogan (ANC) asked whether, if a parliamentary committee convened a meeting while on an oversight visit, this would be regarded as being held in the precincts.
Mr M Surty (ANC)[NCOP Chief Whip] noted that if the committee performed its parliamentary duties away during session, in terms of subclauses (b), (c) and (d), such a place would be regarded as an extension of parliament precincts, while on the other hand subclause (d) limited the parliamentary precincts.
Mr J Cronin (ANC) noted that the Ms Hogan's query was complex as some NCOP select committee meetings were held outside Parliament. He said inclusion of the word "exclusively" in the clause should be re-examined.
Mr Jeffery felt that subclause (c) was unnecessary and proposed that the presiding officers determine what constituted a precinct.
Mr Surty concurred that members' privileges and powers should be clearly defined at all meetings.
Mr Eglin stated that all parliamentary committee meetings should be constituted in terms of the Rules and that Chairs should bear such authority.
Adv Meyer noted the importance of committee meeting being formal. He proposed that the word "exclusively" be replaced by "primarily" and that "committee of the Legislature which performs its functions beyond the seat of the Legislature" in Clause 3(2) be re-examined as that phrase was too broad.
The Chair said that all the issues raised would be dealt with later.
Clause 5: Execution of process and arrest of persons within precincts of Legislature
Adv Meyer noted that this Clause applied to both the members and the staff of the Parliament.
Clause 6: Presence of security services in precincts of Legislature
Mr A Nel (ANC) noted that subclause 1 seemed too wide and then asked whether security personnel would need permission from the Speaker or Chair to give evidence in Parliament.
The Chair responded that the provisions of this Clause only referred to the policing functions of security personnel within Parliament.
Ms C September (ANC) asked whether this clause also covered the security personnel of visiting foreign presidents.
Adv Meyer replied that the clause only covered South African security personnel.
Chapter 3: Disciplinary action against members for contempt of Legislature and other punishable misconduct
Clause 7: Disciplinary action Against Members
The Chair asked how an action against a Member should be initiated.
Madam Speaker suggested that a proactive committee on issues of privilege should be established.
Mr Eglin concurred and further noted that "standing" in Clause 7(2) did not refer to an ad hoc committee but a proactive one.
The Chair asked whether the committee itself or an independent investigator would be charged with the investigation process.
Adv Meyer responded that in previous meetings, it had been decided that an investigator would be responsible.
Ms Hogan asked for clarity on the difference between an investigation and an enquiry, and asked whether the suggested committee would be able to investigate the matter.
Adv Meyer noted that while the enquiry might involve an investigation, the reverse was not the case. Therefore the functions of the said committee would be clearly stipulated in the Rules.
Madam Speaker said the purpose of this exercise was to produce broad framework legislation and that it would be important to look at similar practices elsewhere. She further proposed that the Committee should get advice on the legality of subclause (4)(e) and that the matter be considered by the Rules of the successive Parliament.
Adv Meyer added that the provisions of subclause (10) might serve as such authority since a suspended member would not be entitled to remuneration.
The Chair noted that a member could be suspended with or without a payment. He then requested members to comment on subclause (5), which could result on double jeopardy as the DPP need not receive any consent from Parliament if it had jurisdiction over the matter.
Madam Speaker said it was important to distinguish between punishable misconducts and criminal offences. As Parliament could not protect its members from prosecution, this subclause should be carefully worded so that people would not be tried repeatedly for the same offence.
Mr Eglin concurred that this distinction was vital so that members of Parliament and of the public were not seen to be punished differently for the same acts.
Adv Schmidt said it was imperative for the Committee to guard against alleviating acts of misconduct punishable by Parliament, to the level of criminal offences punishable in Court.
Chapter 4: Privileges, immunities, independence and protection of Members and Legislature
Clause 9: Freedom of speech in joint committees
The word "joint sitting" in the heading was changed to "joint committees".
Clauses 11: Prohibited acts in respect of Legislature and Members
Clause 12: Persons creating disturbance
Adv Meyer noted that if a member of the public created a disturbance in Parliament, he/she was remanded to Court, but if the same problem was caused by a Member, he/she was referred to Parliament.
Ms Chohan-Khota noted that while Clause 11 had created a criminal offence, Clause 12 had not done so in terms of Clause 28. Therefore it was important that Clause 11 be tightened to prevent any frivolous charges.
Madam Speaker noted that things had been lumped together in this Bill and that the Committee should guard against legislating mixed laws. She said that since some of the actions stipulated in the chapter were already seen in the criminal sphere as offences, a workshop should be organised to deal specifically with the matter.
Ms Hogan concurred that Clause 11 was unclear. She said Parliament should be protected from frivolous charges, but that a criminal act should be referred to the DPP.
The Chair noted that members all agreed on the issue as layed out by Ms Hogan. Madam Speaker concurred.
Clause 14: Matters in which Members have direct financial interest
The members felt that this Clause was problematically wide.
Adv Meyer noted that its wording were directly taken from the 1963 Constitution.
Madam Speaker noted that when a person has an interest in a matter, he/she should participate in their capacity as an ordinary member of the public. She suggested that the Committee seek legal advice and compare legal instruments of other countries.
Ms Hogan said the clause should include a provision requiring a member to declare his/her interest and thus empower the Chair of such Committee to decide on the further participation of such a member.
Ms Chohan-Khota said that sanctions should be imposed on those who were given the opportunity but failed to make such declarations.
Chapter 5: Witnesses
Clause 19: Privilege witnesses
Madam Speaker asked about the constitutionality and viability of subclause (2).
Adv Schmidt noted that under certain circumstances, a person might be compelled to answer a question if that information could not be used against him/her. He said it was important to determine what was justifiable in the circumstances and what the Parliament needed from the process.
Adv Meyer concurred and noted that such witnesses would be awarded all the privileges of witnesses in criminal cases. He said this provision was an issue of policy and Parliament's oversight function might be questioned without it.
Mr Nel noted that this provision could create a loophole abused by volunteers so that information could not be used in their subsequent criminal trials. He said Parliament should be guided by the importance of the information or of the conviction.
Ms Chohan-Khota said abuse could be prevented since the information was given under oath or affirmation and thus Parliament should clearly specify the framework for rules and legislation.
Dr R Davies (ANC) said that a limit should be imposed on when members could give information to Parliament.
Adv Meyer suggested that "subsection (4)" be corrected as "subsection (3)" in subclause (4).
Clause 20: Offences relating to witnesses
There was an agreement that this clause should also apply to the Members of Parliament and thus the words "excluding a member of Parliament" should be deleted.
Chapter 6: Publications and broadcasting
Clause 22: Unauthorised publishing
Dr Davies asked the meaning of unauthorised publishing and whether publication would include a report in the media before the issue was made a public matter.
Adv Meyer responded that the term had its ordinary meaning and thus affirmed that such a media report would count as published.
Clause 28: Offences
The Chair noted that corrections should be recorded in subclause (1) and the two sections mentioned should be Sections 11 and 13. Furthermore, in subclause (2) the sections referred to were Sections 22, 24 and 27, while the section referred to in subclause (3) was Section 13(2).
The meeting was adjourned.
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