Twelfth Draft of Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill: deliberations

Meeting report

AD HOC COMMITTEE ON POWERS AND PRIVILEGES OF PARLIAMENT
11 November 2003
POWERS, PRIVILEGES AND IMMUNITIES OF PARLIAMENT AND PROVINCIAL LEGISLATURES BILL: DELIBERATIONS

Chairperson: Mr P Hendrikse (ANC)

Documents handed out:
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill (Twelfth Draft 06/11/2003)
Powers and Privileges: Post Lekgotla Report (email [email protected] for document)
Parliamentary Privilege in UK: The position of witnesses appearing before a parliamentary committee (email [email protected] for document)

SUMMARY
The Committee went through the twelfth draft of the Bill clause by clause in order to check the changes made to this draft. A few minor amendments were effected to the Bill. It will vote on the Bill on 18 November 2003.

MINUTES
Chapter 1: Definitions
Clause 1: Definitions
Adv A Meyer, drafter and former Chief Legal Advisor to Parliament, noted that the changes made to the concepts in the definition clause are meant to bring those concepts in line with the manner in which they are defined in the Constitution. These changes are as a result of the resolutions taken in both the National Assembly and National Council of Provinces workshops held on the eleventh draft of the Bill.

Mr C Eglin (DA) asked why the department does not use the words "and including a Cabinet member" instead of those used in par (b) of the definition of a "member" .

Adv Meyer replied that members at the workshop had decided to exclude the President as a member in terms of this Bill and hence they decided not to employ the word "Cabinet" since the President is also a member of the Cabinet.

Chapter 2: Precincts of Parliament
Clause 2: Description of precincts
The Chair pointed out that the old Clause 2, which dealt with the application of the Bill, now appears in the new Chapter 8, which deals with the application of this Bill in the provincial legislatures.

Adv Meyer explained that the word "exclusively" has been substituted by the word "primarily" in subclause (1)(c) while the word "House and sitting" has been added in subclause (2).

Clause 3: Control over precincts
Adv Meyer noted that the phrase "directives of Parliament" has been substituted by "resolution of the House" and the word "joint" has also been added.

Clause 4: Presence of security services in precincts
Adv Meyer said that the phrase "of a Legislature" has been removed and "for the purpose of performing any policing function" and "policing" has been inserted in subclause (1).

Chapter 3: Privileges, Immunities, Independence…and Parliament
Clause 6: Freedom of speech in joint sittings
Adv Meyer noted that the phrase "Cabinet members, Deputy Ministers, members of the NA and delegates to the NCOP" has been substituted by "The President and members". Further, the clause on Immunities relating to the Pan-African Parliament and the SADC Parliamentary Forum has been omitted in this draft Bill.

Clause 7: Prohibited acts in respect of Parliament and members
Adv Meyer remarked that the phrases "House or" and "in the precincts" have been inserted.

Clause 8: Improper influence of members
Adv Meyer noted that the phrase "House or" has been inserted into subclause (1). The provisions of subclause (2) have been amended to be in line with the provisions of the Municipal Structures Act. Those provisions which deat with conflict of interest have been omitted since they would be dealt with in the Members' Code of Conduct.

He proposed that the phrase "voting or not voting in a particular manner" in par (a) be slightly amended to read: "voting in a particular manner, or not voting in a particular manner".

The Committee accepted the proposal.

The Chair commented that the Committee Report to the House would have to include those issues which the Committee felt should be dealt with by the Rules Committee.

Clause 9: Attendance of members before Court
The phrase "or criminal proceedings" has been inserted in subclause (1).

The Chair pointed out that the provisions of this clause applies to a member where the member is required to attend a court as a witness in criminal proceedings. However it is applicable to a member in civil proceedings when the member is required to attend as either the witness or defendant.

Clause 10: Giving evidence of proceedings
The phrase "House or" has been inserted in this clause.

Chapter 4: Disciplinary action against members for contempt of Parliament
Clause 12: Disciplinary action against members for contempt
Adv Meyer noted that the phrase "in terms of" has been substituted by "referred to in" in subclause (2) and that "caution" has been removed from subclause (5). The phrases "A formal warning" , "or the House" and "or the suspension for a specified period" have been inserted in subclause (5) and the word "National" in subclause (6). A new provision has been inserted as subclause (4) and the word "Legislature" has been substituted by "House" in subclause (13) and the phrase "or a joint meeting of the Houses" inserted.

He proposed that the phrase "the Constitution and" in subclause (1) be removed.

The Committee accepted the proposal.

The Chair said that it should be borne in mind that the new subclause (4) relates to what is known as double jeopardy. Therefore this provision explicitly states that the fact that Parliament is dealing or has dealt with the matter against a member does not preclude a criminal investigation or even a proceeding to be instituted against such member.

Clause 13: Conduct constituting contempt
Adv Meyer said that "the Legislature" has been substituted with "a House" in par (c) and the phrases "or the Houses" and "or a breach or abuse of parliamentary privilege" have been inserted in paragraphs (c) and (d) respectively. "Punishable misconduct" has been omitted since they felt that there is not any real difference between it and the word "contempt".

The Chair felt that the Committee should leave it up to the Standing Committee on Rules to come up with the definition of the phrase "a breach or abuse of parliamentary privilege".

However, Mr Eglin disagreed as he felt that it was not appropriate for one parliamentary committee to create an offence and thereafter leave its determination to another committee.

The Chair accepted the contention and said that members would thus have to come up with such a definition. In doing so, members should also consider whether it would be proper to include the elements of punishable misconduct to the crime of contempt or whether they should form part of a crime of offence.

Chapter 5: Witnesses
Clause 14: Summoning of witnesses
Adv Meyer noted that "Parliament" and "after consultation" have been substituted with "a House" and "with the concurrence", respectively, in subclause (2).

Clause 15: Examination of witnesses
"Parliament" has been substituted by "a House" in par (a) and the phrase "subject to any limitation…that a witness may be required to produce" has been added to par (b).

The Chair said that the members at the workshop felt that it was necessary that a limitation be inserted in par (b) so as to guide the questioning of the witnesses. This limitation on the manner in which the witnesses are questioned is also recognised in other jurisprudence such as that of England.

Clause 16: Privilege of witnesses
"Members of Parliament" has been removed and substituted with "a person who has freedom of speech in terms of sections 58(1) or 71(1) of the Constitution"

The Chair noted that while a similar provision to that of subclause (2) is recognised and accepted in England, the Committee would have to consider its constitutionality taking into account the fact that in England there is no constitutional supremacy.

Mr Eglin asked where one should draw a limitation on a member's freedom of speech in Parliament.

The Chair said that the Bill explicitly states that if a member intentionally deceived the Parliament then such a member would be committing contempt with regard to parliamentary duty. However since that member only committed a breach of parliamentary duty and therefore did not commit an offence in terms of the Bill, the member cannot be tried by a court but only subpoenaed by Parliament itself.

Adv Meyer pointed out that the provisions of Clause 13 can only be used inside Parliament and not by an outside court of law in criminal proceedings. He added that Clause 13, which creates a contempt by a member of his/her parliamentary duties, should be read together with Clause 12(1).

Clause 17: Offences relating to witnesses
"Parliament" has been substituted by "a House" and the phrase "to give false evidence before a House or Committee" has been inserted in subclause(2)(b) as subpar (ii). It is important to note that the new subclause (3) excludes a member from criminal liability although such a member could still be found to be in contempt of Parliament in terms of Clause 13.

Mr F Cassim (PJC) asked the drafter to rewrite these provisions so as to make it clear that this clause applies irrespective of whether such a statement has been made on oath or affirmation or not, so as to avoid interpretational problems that might arise.

Chapter 6: Publications and Broadcasting
Clause 18: Protection in respect of publications
"Legislature" has been substituted with the words "the Houses or the House" and "concerned" has been inserted in subclause (1).

Clause 19: Unauthorised publishing
"Legislature" has been substituted with "a House" in this clause.

Clause 20:
"Legislature" has been substituted with "a House" in this clause.

Clause 21: Broadcasting of proceedings
The phrase "Speaker or Chairperson" has been removed and substituted with "the Houses or the House concerned" in subclause (1). The phrases "by order or under" and "in terms of the standing rules" have been inserted.

Chapter 7: General
Clause 22: Liability for acts done under authority of Parliament
"Legislature" has been substituted with "the House" in this clause.

Clause 23: Civil proceedings against Parliament
Adv Meyer noted that this is a new clause creating a parliamentary liability for civil matters.

Clause 25: Protection of members of public
This is a new clause creating a protection for public members for defamatory statements made in the House or parliamentary committee.

Chapter 8: Provincial Legislatures
This is a new chapter dealing specifically with the provincial legislatures.

The Chair pointed out that since this chapter contains provisions which bring about major changes on the applicability of this Bill to provincial legislatures, it is imperative that it be submitted to the NCOP so that it could comment on this matter.

Clause 28: Application of Act to provincial legislatures
Adv Meyer said that the provisions of this chapter would be submitted to the NCOP as requested by the Committee. However since subclause (1) has the effect of prescribing to the provinces, it is imperative that the Committee consider them.

The meeting was adjourned.