Fourteenth Draft of Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill: adoption

Meeting report

POWERS AND PRIVILEGES OF PARLIAMENT AD HOC COMMITTEE
25 November 2003
FOURTEENTH DRAFT OF POWERS, PRIVILEGES AND IMMUNITIES OF PARLIAMENT AND PROVINCIAL LEGISLATURES BILL: ADOPTION

Chairperson: Mr P Hendrikse (ANC)

Documents:
Powers and Privileges Bill: 13th Draft
Proposed Changes to the 13th Draft
Draft Report of the Ad Hoc Committee on Powers and Privileges of Parliament
Powers and Privileges Bill: 15th Draft (as voted on)

SUMMARY
The Committee finalised the outstanding issues on Clauses 12, 13, 16 and 25. After six years and fourteen drafts, the Committee approved the Bill. A Committee Report on the Bill was also adopted.

MINUTES
Clause 12: Disciplinary action against members for contempt
The Chair noted the following amendments to this clause:
- The word "pay" had been substituted with the word "remuneration" in Clause 12(5)(g).
- The phrase "where appropriate" had been inserted into Clause 12(6).
- The word "pay" had been substituted with the word "remuneration" in Clause 12(11).

The Committee accepted the amendments.

Clause 13: Conduct constituting contempt
To provide greater clarity, Clause 13(d) had been split into two sub-paragraphs 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.

The Committee accepted the amendment.

Clause 16: Privilege of witnesses
Clause 16(2) in the previous draft stipulated that a witness "is compelled" to give evidence despite it being self-incriminatory. The Chair suggested three alternative options for this phrase:

- Option 1 was that a witness "is not entitled to refuse" to answer a question or produce a document "on the grounds that" it would be incriminatory.
- Option 2 was that a person "may be required" to answer a question or produce a document despite the incriminatory consequences.
- Option 3 combined subclauses (1) and (2) to give effect to extending privileges normally available in a court, except for that against self-incrimination. The wording was essentially similar to Option 1.

Ms Rajbally (MF) questioned whether "is not entitled to refuse" amounted to being forced to speak and thus infringed constitutional rights.

Adv A Meyer, drafter and former Chief Legal Advisor to Parliament, agreed it was not absolutely clear whether such a provision was constitutional, but said this would be for the courts to decide. He discussed the legal opinion on the matter, which referred to two Constitutional Court cases dealing with compulsion to make self-incriminatory statements under the Company Act. The Court found that certain circumstances existed where it was not unconstitutional to compel the giving of evidence. Whether the circumstances envisaged by the Bill would also attract a constitutional exemption remained to be decided by a court. He noted, however, that the provision does not exclude other defences (eg privacy, legal privilege, etc) being raised.

Adv Meyer said he favoured the first option. Options 1 and 3 were essentially the same, except that Option 3 combines the two subclauses. From a plain language point of view he thus preferred Option 1. Option 2 raised questions of discretion that may provide difficulties.

Mr B Martins (ANC) raised issue with Option 1 in that he felt it would not pass constitutional muster with regard to the right to silence.

The Chair pointed out that the Committee had agreed that the compulsion to speak was necessary and had thus requested the legal opinion, which did not find such a provision to be unconstitutional.

The Chair then asked, with regard to Option 2, whether it would be possible for the rules to stipulate the conditions when a witness would be compelled to speak.

Adv Meyer said this was a possibility. He warned that Parliament is, through such a provision inviting the court's intervention because if someone refuses to speak then the matter will be referred to a Court.

Adv Meyer pointed out that the Constitutional Court decisions referred to in the legal opinion did not allow self-incriminatory evidence to be used against the person in court. The Bill expressly excluded the admission of this evidence in a court. He added he had no problem with Option 2, but for the possible complications that came with greater flexibility.

Mr H Schmidt (DA) expressed doubt as to whether there was an enormous difference in the implications between the wordings of the three options or even "may be compelled". He did, however, regard such a clause as important leverage over a witness. Without the clause a witness may raise privilege against self-incrimination to the extent that it prevents the House or Committee from performing its oversight function effectively.

Mr M Chikane (ANC) said the subclause should not be as inflexible as in Option 1 as Parliament should not be handling complicated matters that should be referred to the court. He stressed the importance of maintaining the separation between Parliament and the courts.

The Chair emphasised that the envisaged function of the House or committee was not to find a party guilty, as with a court, but to investigate a problem and find its solution. Thus, even self-incriminatory evidence was important.

Mr Chikane said that the Committee must be mindful that Parliament does not have full investigatory powers and that the Bill must be constructed within the confines of Parliament's powers.

Mr Martins pointed out that none of the options completely abrogate a person's rights and that they still have recourse to rights, such as silence, under the Constitution. The Legislature was an institution within a legal framework that is ultimately under the authority of the Constitution. He preferred the adoption of Option 2 as Option 1 seemed, on the face of it, to contain a very strong formulation.

The Chair noted that a person could raise certain exceptions and refuse to answer a question. A court would adjudge whether these were sufficient reasons.

Ms Rajbally expressed support for Option 2. She was, however, concerned with the fact that this evidence could be obtained "despite the fact that the answer… would incriminate him or her…"

The Chair pointed out that the reason for the existence of the subclause lay in this wording.

Mr Schmidt noted that the application of the clause was very limited and does not exclude other privileges.

Ms Rajbally asked what would happen if a person refused to answer.

The Chair said that the person would be charged with an offence under Clause 17. The person would then need to argue before a court their reasons for not answering.

The Chair proposed Option 2 to replace Clause 16(2) and asked if all members were in agreement.

The Committee accepted the amendment.

Clause 25: Protection of members of the public
Adv Meyer said that Mr Eglin (DA) had noted a problem with the wording contained in Clause 25(1). As it stood, the clause allowed any person about whom a defamatory remark had been made, to request that the person's response be recorded. This would require an official finding of defamation. He proposed that a request to have a response recorded might be made by any person "who feels aggrieved by an adverse statement or remark…"

Mr Martins submitted that the word "adverse" also requires an unnecessary value judgment as to the nature of the statement or remark.

The Chair proposed the acceptance of the proposed amended clause with the deletion of "adverse".

The Committee accepted the amendment.

The Chair noted that before the Bill was submitted to the National Assembly for debate, the clerk should ascertain from the Joint Tagging Mechanism (JTM) if it must be tagged as a Section 75 or Section 76 Bill.

Draft Report of the Ad Hoc Committee on Powers and Privileges of Parliament
The Chair emphasised the importance of approving the Report as the Bill made numerous references to rules. The Report contained important guidance as to what the Rules Committees would need to consider in drawing up the rules.

The Chair read through the Report. He noted Point 4(2) and (3) which notes that the Constitution does not specifically provide for freedom of speech in joint sittings of the two Houses of Parliament nor does it provide for freedom of speech for certain members of the executive in joint committees and in the National Assembly. It recommended these aspects be referred to the Constitutional Review Committee for attention.

Afternoon session
Voting on the Bill and Committee Report
The finalised Bill and the Committee Report on the Bill were circulated amongst members. The Chair noted that the Bill had taken six years and fourteen drafts to produce a final draft.

The Chair noted that, in light of the long process to produce the Bill, he preferred the Bill to be passed chapter by chapter. He proceeded to read each chapter and briefly summarise its contents. The members approved each in turn and then unanimously accepted the Bill as a whole.

The Committee then adopted Committee Report on the Bill.

Adv A Meyer said that before the Bill was debated in Parliament the JTM must be consulted as to whether the Bill should be introduced as a section 75 or a section 76 Bill. In his opinion it was a section 75 Bill, as it did not fall within any specific category found in the Constitution.

Meeting adjourned