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AD HOC SELECT COMMITTEE ON POWERS AND PRIVILEGES OF PARLIAMENT
18 November 2003
Powers, privileges and immunities of Parliament & Provincial Legislatures Bill: DELIBERATION
Documents handed out:
Powers, privileges and immunities of Parliament and Provincial Legislatures Bill Thirteenth Draft
Draft Report on the Ad Hoc Select Committee on Powers and Privileges of Parliament
Legal Opinion by Parliamentary Law Advisors on Clause 16(2) (document awaited)
The meeting was convened to adopt the Bill. However, on receipt of the thirteenth draft, there will still some concerns about Clause 13, Clause 15(b) and Clause 16(2). Despite reaching consensus on retaining the wording of Clause 13 and Clause 15(b), the Committee said Clause 16(2) had to be reworded. Therefore the Bill was not adopted. The Committee will meet the following week to adopt the Bill.
Mr Hendrickse welcomed the Committee and said that there were three areas of the Bill still to be discussed: Clause 16(2), Clause 15(b), and Clause 13.
Clause 13: Conduct constituting contempt
Ms Rajbally (Minority Front) was concerned about removing Clause 13(c) from the Bill.
Mr Hendrickse allayed her fears by saying that the Committee proposed to remove only Clause 13(a) and (b).
Adv A Meyer, drafter and former Chief Legal Advisor to Parliament, suggested removing only Clause 13(b).
Mr Schmidt (DA) said that Clause 13(a) should remain in the Bill. If it is removed, the only sanction for the incidents mentioned would come from reporting the incidents to the police. Parliament should also be allowed to determine a course of action where an incident mentioned in Clause 13(a) occurs. He provided the example of assault and said that in certain cases the incident is not so grave as to warrant reporting it to the police but the incident may still require parliamentary disciplining.
Mr Eglin (DA) questioned whether 13(d) should remain in the Bill as he thought the Standing Rules of Parliament would cover the Acts mentioned and they therefore did not need to be covered in this Bill too. Clause 13(d) seems to cover Clause 13(c).
Adv Meyer said that Clause 13(d) did cover Clause 13(c) in way but he felt it was necessary to separate the two Clauses as there are certain cases where a member refuses to obey a rule of the Houses that does not amount to contempt of Parliament or of a breach of parliamentary privilege.
Mr Eglin (DA) then suggested splitting Clause 13(d) so that it would separate an act which amounts to contempt of Parliament from an act that constitutes a breach or abuse of parliamentary privilege.
Mr Hendrickse and Adv Meyer agreed with Mr Eglin.
Mr Eglin (DA) suggested qualifying Clause 12(6).
Adv Meyer agreed to add "where transgression amounts to a criminal offence" or "where applicable" or "where appropriate" after "the House may."
Mr Schmidt (DA) asked whether it was a conscious decision of the Committee to refer to "pay" in Clause 12(g) when the Bill refers to "salary" in Clause 12(f).
Adv Meyer (State law Adviser) said the distinction existed so as to expressly amend the Remuneration of Public Office Bearers Act 20 of 1998 which makes reference to a member's salary. He suggested replacing "pay" in Clause 12(g) with remuneration to avoid confusion between that which constitutes a member's salary and that which constitutes a member's pay.
Mr Eglin (DA) asked why Clause 16(4) had been removed from this draft of the Bill.
Mr Hendrickse said that it was agreed that its incorporation was superfluous.
Adv Meyer said that as it was covered by the Constitution it was unnecessary to include it in this Bill.
Mr Hendrickse said the Committee needed to move on but he said it was noted that the general opinion supported including all the subsections of Clause 13 in the Bill but that Clause 13(d) should be separated.
Clause 15: Examination of witnesses
The words 'subject to any limitationâ€¦ that a witness may be required to produce' has been added to 15(b).
Adv A Meyer noted that the Rules will thus determine on what issues witnesses cannot be questioned.
Mr Hendrickse read the clause and asked if all the members were satisfied with it.
Mr Schmidt asked for clarity as to the procedure employed in examining a witness.
Mr Hendrickse replied the Rules of Parliament read in conjunction with this Bill would stipulate the procedure. He then noted the Committee's apparent satisfaction with this clause.
Clause 16: Privilege of witnesses
Adv Meyer noted that the legal opinion supported Clause 16(2) despite the fact that if the proceedings were being held in a criminal court a witness is not required to incriminate him or herself. He did however note that legal opinion supported changing the wording of the section from "is compelled to" to "may be required to." In his personal opinion though, he said that this change of wording would confuse the issue as "required" means "compelled".
Mr Eglin (DA) suggested including "is required to" as opposed to "may be required to."
Mr Schmidt (DA) said that if this is to avoid the exercise of discretion by the House or committee, this wording is not sufficient as Clause 17(c)(i) says the House or committee will still be required to determine whether a person has failed to answer the questions put to him or her under Clause 15(b) without sufficient cause.
Mr Hendrickse asked whether this means that a House or committee may compel a person to answer a question.
Mr Schmidt (DA) said it does mean a House or committee may compel a person to answer a question.
Adv Meyer said that sufficient cause applies only to Clause 17(1) and (2) therefore he suggested that "is required to" is the better phrase.
Ms Hajaig (ANC) agreed that "is required to" is the better phrase as it is less aggressive than "is compelled to."
Mr Schmidt (DA) sought clarity on the interpretation of Clause 16(2). Does it mean that a witness has sufficient cause not to testify if self-incriminating evidence is required? He suggested possibly qualifying Clause 16(2).
Mr Hendrickse established the overarching principle that the Committee wished to put forward. The Committee wants the witness to testify even if the evidence may be self-incriminating.
Mr Eglin (DA) then noted that regardless of whether the Committee includes the "sufficient cause" proviso, a person may still have sufficient cause not to testify in terms of the Bill of Rights or another applicable law.
Adv Meyer said "sufficient cause" had been mentioned in Clause 17(1)(c) and it was necessary to read Clause 16(2) with Clause 17(1)(c).
Mr Hendrickse asked whether a court would be required to determine whether sufficient cause existed.
Adv Meyer said that it is hoped that the House or committee could decide whether sufficient cause exists without having to go to court.
Mr Hendrickse proposed the wording "may be compelled" to incorporate the "sufficient cause" proviso.
Mr Schmidt (DA) said that "may be compelled" serves the legal purpose while including "sufficient cause" appears amenable to the layperson.
Mr Hendrickse noted the Committee seemed to be in agreement as to the compulsion element but he asked Adv Meyer to look at the wording of the section again.
Adv Meyer asked whether the Committee envisaged a witness having sufficient cause not to testify in circumstances where it is not a question as to whether the evidence is self-incriminating or not.
Mr Schmidt (DA) said this is what he thought the Committee envisaged.
A Committee member from the DA warned against introducing an element of ambiguity in retaining the "sufficient cause" proviso.
Mr Hendrickse said the Committee was out of time but he noted the Committee was in agreement as to a House or committee's ability to compel a witness to testify. He said it was unfortunate the Committee did not have time to deal with the draft Committee Report on the Bill but asked members to read the draft report for comment at the following meeting.
The meeting was adjourned.
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