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POWERS AND PRIVILEGES OF PARLIAMENT AD HOC SELECT COMMITTEE
18 February 2004
POWERS, PRIVILEGES AND IMMUNITIES OF PARLIAMENT AND PROVINCIAL LEGISLATURES BILL: BRIEFING TO THE AD HOC SELECT COMMITTEE
Chairperson: Mr Setona (ANC, Free State)
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill [B74-2003]
Powers and Privileges Bill: 15th Draft (as voted on)
[Note: This content is the same as the 14th draft only the formatting has changed]
National Assembly's Ad Hoc Committee's Report on the Bill
Notes for Powers and Privileges debate speech in the National Assembly
Input by KwaZulu-Natal Parliament on Bill
The Chairperson of the National Assembly Ad Hoc Committee on the Powers and Privileges of Parliament briefed the Ad Hoc Select Committee on the finalised version of the Bill. After going through the Bill, chapter by chapter, he responded to questions. The majority of the questions focussed on technical matters arising out of the chapter dealing with the privileges, immunities, independence and protection of members and parliament. The Committee was highly impressed with the polished nature of the Bill.
Mr Setona (ANC, NCOP) reminded the Committee that they had only one week in which to discuss the Bill before it was scheduled to be presented to the NCOP. He noted that the Bill, which had been unanimously adopted by the National Assembly the previous day, had arisen out of the need to have legislation that was in line with the Constitution to address the powers and privileges of parliament. He introduced Mr P Hendrickse (ANC), who had chaired the National Assembly's Ad Hoc Committee, and handed over to him to run through the Bill and field questions.
Mr Hendrickse noted that it had taken since 1997 to bring the Bill to fruition and added how necessary it was to replace the current legislation, which dated back to 1963.
Mr Hendrickse noted that this chapter deals with definitions.
This chapter provides for a description of what constitutes the precincts of Parliament and that the Speaker and NCOP Chairperson exercise, in accordance with the Rules, joint control over Parliament. The members of the security services must perform policing functions only under the authority of the Speaker or Chairperson.
This deals with the privileges, immunities, independence and protection of members and Parliament. Mr Hendrickse noted that the Bill does not deal with the form and manner in which freedom of speech in Parliament and Provincial Legislatures is exercised, but this will be provided for in the Rules. He also pointed out that a constitutional lacuna regarding freedom of speech in joint sittings of the Houses of Parliament was compensated for in Clause 6. He explained Clauses 7 and 8, which respectively prohibited the obstruction of any parliamentary duty, and the improper influence of members. He said that under Clause 9 members can be compelled to attend court proceedings, but a certificate stating the member is required to attend business at Parliament issued by the Speaker or Chairperson may negate that compellability under two specific circumstances.
The Chair suggested that Members direct questions to Mr Hendrickse after every chapter has been explained.
Ms Vilikazi (IFP, KZN) asked how Clause 9 would affect members during recess or adjournment of a House.
Mr Hendrickse said this clause was inserted to ensure members were not above the law, but that their parliamentary obligations were simultaneously not negated. The clause would thus not apply during recess.
Mr Surty, (ANC, North West) referred to Clause 7(c), which prohibits a person from obstructing a member from proceeding to or coming from a meeting. He wondered whether there should not be some wilful element present in the offence.
Mr Hendrickse replied that he thought the courts would interpret wilfulness as an element.
Mr Tolo (ANC) enquired whether the wording "going from" in Clause 7(c) meant that members could not be stopped on their way home from a meeting.
Mr Surty asked if this provision would also prevent a Chair of a meeting preventing a member from proceeding to another meeting until an important matter had been resolved.
Mr Hendrickse said he was not a qualified lawyer, but these technical questions could be answered at the Committee's next meeting where legal experts would be present. He pointed out that the wording in this section was identical to the current legislation. He reminded Members of the workshops which had been held the previous year and said that the issues, many of them technical, that had been raised in the workshops had been addressed in the Bill.
Mr Surty said he was also concerned about Clause 8(1) read with subclause (a), which prevented the giving of any benefit to influence a member. He wondered whether this would effectively exclude any kind of lobbying at all.
Mr Hendrickse said this should not be a concern as the clause referred to the promise of a benefit if a member was influenced.
Ms Adhikari (Parliamentary legal advisor) said she understood Mr Surty's concern, but said the structure of the clause meant that the sentence should be read that 'a person may not influence a memberâ€¦ by the offer of a promise of any inducement or benefit'. Such a reading did not exclude lobbying.
Mr Surty then referred to Clause 10(1), noting that it was the first reference to a member or 'staff member' he had seen in the Bill.
Ms Adhikari said it was not the only reference to staff members as some provisions needed to extend to staff members in order to be effective.
Mr Hendrickse said this chapter deals with disciplinary action against a member. He noted a House has the power to take action against a member who is in contempt. Conduct constituting contempt of Parliament is defined in Clause 13. He said the Bill provided for a standing disciplinary committee to be set up subject to the Rules and in accordance with fair and reasonable procedure. The House is empowered by the Bill to impose various penalties ranging from a formal warning to an order to apologise to a fine or suspension. He reminded the Committee that a House was not empowered, other than through the Constitution, to terminate membership.
Mr Surty said the Chapter was extremely thorough and a marked improvement on the previous draft he had seen.
Mr Hendrickse joked that this was to be expected as all Members had a vested interest.
This chapter set out how witnesses are subpoenaed to appear before a House or Committee. A person can only be subpoenaed by the Secretary to Parliament on the instructions, or with the concurrence, of the Speaker or Chairperson. He noted that Clause 14 was written so as to include joint committees, thus filling a lacuna in the Constitution.
Mr Surty questioned whether the clause had been wisely written, as it seemed to provide conditions for subpoenas of joint committees that were not included in the constitutional requirements for a House or any other Committee. He said it seemed that the Bill provided conditions, like details a summons must include, on joint committees that do not exist for other meetings in terms of the Constitution.
Ms Adhikari agreed that the clause did seem to go above and beyond what is in the Constitution.
After some confusion, Mr Hendrickse drew the Committee's attention to the wording of subclause (2) which made reference to summonses issued for a joint committee or either of the Constitutionally provided for meetings.
He moved on to Clause 16, which provides that when a member is subpoenaed as a witness, they are not entitled to special privilege against self-incrimination. He noted that the Rules will provide certain limitations regarding the type of subject matter or document which may not be subjected to questioning. Should a witness refuse to answer on one of these grounds, a court will decide whether their decision was correct. Clause 17 lists certain offences with regard to witnesses, including failing to appear, refusing to be sworn in, or insufficiently answering questions without sufficient cause.
Mr Surty again expressed satisfaction with the Bill.
Mr Hendrickse said Chapter Six dealt with publication and broadcasting of Parliament. Clause 18 protects authorised publications of Parliamentary proceedings from civil or criminal proceedings. However, Clause 19 provides that no person can publish a document if not authorised by the standing rules or the House. He also noted that broadcasting of proceedings may only be done with permission of the House and in accordance with the rules.
This dealt with general matters. Mr Hendrickse proudly introduced Clause 25, which aims to protect member of the public. Under this new clause, members of the pulic who are aggrieved by a statement made in Parliament may have a response recorded and published. He noted that Clause 27 set out the various offences under the Bill and the maximum penalties that may be imposed for these offences.
Mr Hendrickse noted that Chapter 8 was of interest to this Committee as it provides for certain clauses to be made applicable to Provincial Legislatures and their members. The clauses would need to be changed in terms with the standing rules. Ms Adhikari added that in terms of the Constitution, not all clauses may be adapted for Provincial Legislature.
Ms Ramodibe (ANC) asked for clarification on the liability of reports and broadcasts of Parliament as provided for in Clauses 18 and 21.
Mr Hendrickse said that as parliamentarian he could not be held liable for statements made in Parliament. Similarly, any authorised publisher or broadcaster of events in parliament cannot be held liable.
The Chair then drew the Committee's attention to the National Assembly's Ad Hoc Committee's Report on the Bill and the areas it deemed necessary to be further addressed by the Rules.
The meeting was adjourned.
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