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POWERS AND PRIVILEGES JOINT SUBCOMMITTEE
4 April 2001
POWERS AND IMMUNITIES OF PARLIAMENT BILL: DISCUSSION
Powers & Immunities of Parliament Bill
Chairperson: Dr F Ginwala (NA Speaker)
The committee discussed the draft Bill; highlighting issues that they felt needed attention. The Chair was quick to point out that the committee was not formally considering the Bill, merely highlighting issues that affect them. Much discussion revolved around the right of Members of Parliament to freedom of expression in Parliament and whether this should be limited to prevent abuse of this privilege. The committee agreed to pass a resolution in the House to refer the Bill to a National Assembly committee for formal consideration.
Dr Ginwala clarified that the difference between the second and third draft of the Bill was that certain typographical errors had been corrected.
Adv Fink Haysom, independent Legal Advisor to the committee, stated that in the committee's previous meeting they had not received specific instructions on how to amend the Bill. Any amendments that were made they did at their own initiative. Dr Ginwala proceeded to refer the committee to the Bill and asked members to comment where appropriate.
"precincts of Parliament"
Dr Ginwala referred to the definition and asked questions pertaining to it.
She asked to what extent are members covered in buildings where they conduct parliamentary business.
Adv Haysom stated that the definition is very broad. It covers all parliamentary buildings.
Adv Anton Meyer, Chief Parliamentary Law Advisor stated that the actual precincts of Parliament should not be expressly stated in the Bill. He was also not in favour of the provision in the definition that provides for the precincts of Parliament to be set out and published in the government gazette. Precincts of Parliament refer to buildings under the control of parliamentary officers.
Dr Ginwala was concerned about the use of the word, 'exclusively' in the definition. She stated that 'exclusively' is too limiting. What happens in instances where they have meetings in buildings not exclusively used by Parliament. For example the Rainforest Room in 120 Plein Street. She asked that the definition of "precincts of Parliament" should cover all buildings wherever parliamentary business is being conducted.
Mr Piet Mathee (NNP, Kwazulu-Natal) agreed with Dr Ginwala.
Adv Haysom agreed to find a word other than 'exclusively' to capture the notion of the buildings of Parliament. He stated that as far as conducting parliamentary business away from Parliament, the newly added section 32 covered it.
Adv Haysom asked for clarity on the issue of gazetting of the actual precincts of Parliament.
Dr Ginwala stated that the committee would deal with the issue of gazetting at a later time.
She stated that the committee would not be proceeding through the Bill clause for clause but that members should highlight issues as they proceed through it chapter by chapter.
Chapter 1: Freedom of Speech
Adv Haysom stated that they had to deal mainly with issues of nomenclature in this chapter. Consensus had been reached that it would cover parliamentary members primarily.
Dr Ginwala asked if the provisions in the chapter covered the President.
Adv Haysom stated that he is indeed covered as a member of Cabinet. Other than this the president does not have any special privileges and immunities.
Chapter 2: Immunities and Independance of Members
Adv Haysom stated that Clause 7 was deleted as its provisions are already covered in Clause 5 ie improper influencing of members.
Dr Ginwala had a problem with the fact that no provision had been made for a legal sanction to be applied on the conduct of members. She wished something to be added to the legislation that would give it some legal force. Dr Ginwala did however not want members of Parliament to be limited in performing their duties within their parties.
Chapter 3: Protection of Parliament
Clause 8 (Persons creating disturbance)
Adv Haysom stated that the "staff member" referred to in Clause 8 includes a policeman as well. The intention is to include a policeman under the definition of a staff member. He added that any "staff member" acting in terms of Clause 8 would do so with the authority of Parliament.
Clause 10 (Contempt of Parliament)
Adv Haysom stated that in the previous meeting of the committee he was asked to clarify Clause 10. The issue was which persons would be guilty of contempt and which would be guilty of a criminal offence.
He stated that if members contravene the provisions of the clause they would be in contempt of Parliament and would resultantly be disciplined by Parliament. However where non-members are concerned, Parliament has no disciplinary authority over such persons and they would have to face disciplinary action taken by our civil courts.
Clause 11 (Disciplinary action against members)
Dr Ginwala was concerned over the provision in the clause that provides for a member to be suspended for a period of not longer than 30 days if found guilty of contempt. She felt that 30 days might be too long a period. Dr Ginwala also added that the Cape High Court had made a ruling that no Member of Parliament should be prevented from participating in parliamentary proceedings.
Adv Haysom stated that the member would only be suspended, there is no deprivation of rights. The 30 days is a maximum for which a member might be suspended. It does not mean that each suspension would be as long as 30 days.
Mr L Lever (DP, NW) felt that the "30 sitting days" was too excessive for NCOP members. His reasoning was that NCOP members might not even have 30 sitting days in any given year. This would mean that NCOP members would be totally excluded from parliamentary proceedings.
Ms F Chohan-Kota (ANC) however felt that the 30-day suspension is not punishment befitting contempt. She pointed out that members are in any case reluctant to attend committee meetings and that most would welcome such a suspension.
Adv Haysom stated that historically there had been much harsher punishments. To the extent that serving time in jail was also an option. However given our current democratic dispensation they were slightly guided not to impose harsh punishments to hamper the democratic functions of Parliament.
Clause 13 ( Arrest of members and service of process within precincts of Parliament)
Ms Chohan-Kota stated that of the two options given for the clause, she felt that the second option is the better of the two. The first option she felt allows for a loophole for the arrest of a member not in attendance at a meeting.
Dr Ginwala also added that the first option only covers members whereas the second one covers both staff and members.
Ms B Mbete, NA Deputy Speaker asked that the whole of Chapter 3 be looked at to take cogniscense of the issues that were raised.
Dr Ginwala added that the committee would not be hearing proposals for amendments at this stage.
Chapter 7: General
Clause 32 (Application of Act in case of committee meeting beyond seat of Parliament or during recess or adjournment)
Adv Haysom stated that this section was included to make provision for when meetings are held beyond Parliament. He added that it must be looked at in terms of Clause 1.
Dr Ginwala stated that she still had some concerns over freedom of speech. Do Parliamentarians really have the freedom to say what they please?
Ms Mbete stated that the committee has had discussions previously on whether Parliamentarians have absolute freedom of speech. The question remains whether Parliamentarians have a broader freedom of speech than the public.
Adv Haysom stated that Parliamentarians do in fact enjoy a broader freedom of speech than the ordinary person does. This is so to promote discussion in Parliament. However what must still be decided is the extent to which this freedom should be limited. Generally, in the Constitution freedom of speech is limited by the limitation clause ie Section 36. Adv Haysom however felt that Parliamentarians' freedom of speech could be limited in the rules.
Dr Ginwala asked what happens when a Member of Parliament abuses his freedom of speech and slanders another member. She asked if it was possible to create a procedure in the rules to deal with this abuse of privilege.
Ms Mbete emphasised that they need to find a balance between protecting members rights and preventing abuse in Parliament.
Adv Haysom stated that the limitation could only be provided for in the rules.
Ms Mbete asked what about abuse to persons other than Members of Parliament.
Dr Ginwala stated that provision for it should also be made in the rules.
The committee agreed that limitations on abuse by members should be included in the rules.
Adv Meyer was concerned whether parliamentary proceedings could be open to judicial review. He stated that at present it is not but this could change in the future.
Adv Haysom confirmed that parliamentary proceedings are not reviewable by our courts.
Adv Meyer was concerned about the situation where a Member of Parliament would be questioned about what happened in Parliament.
Dr Ginwala asked that a provision be included in the Bill to give effect to his concern.
In conclusion Dr Ginwala stated that the mandate of this committee is to prepare the legislation and not to adopt it. She added that the committee must get permission from the House to process the Bill further or alternatively pass a resolution to the House to appoint a committee to process the legislation further. She asked the committee if it is agreed to pass a resolution to the House to refer the Bill to a newly appointed National Assembly committee.
The committee agreed and the meeting was adjourned.
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