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AD HOC COMMITTEE ON POWERS AND PRIVILEGES OF PARLIAMENT (NA)
13 June 2001
Chairperson: Mr P Mokaba
Documents handed out
Briefing document on introduction of Powers and Immunities of Parliament Bill (see Appendix)
Powers & Immunities of Parliament Bill (Second Draft)
The committee was divided on whether the second draft of the Bill should be published for comment immediately or whether it should first be polished up as a third draft. There is urgency as the Committee has been given only until the end of the year to finalise the legislation. No decision was taken. There will be a joint workshop with the NCOP Ad Hoc Committee to reach a way forward on this matter.
Mr Mokaba noted the interim decision for meeting on Wednesday afternoons. There had been a request for a summary of procedures that the committee would be following. He asked for some comments on the Committee's programme.
Mr C Eglin (DP), with Mr Cassim (IFP) Ms B Sonjica (ANC) agreeing, was not in favour of publicizing the Bill until the Committee is satisfied with it. He recommended that the Committee should await the third draft of the Bill before any decision is taken to publicize it. This was agreed to by the Chair.
Mr Eglin suggested some minor changes to the text. He said that this was a bit of a hybrid Bill. It contains parts of the Constitution (although it does not identify it as the Constitution) as well as some subtly amended clauses from the Constitution. It contains some matters which the Constitution requires should be dealt with in the Rules and not by legislation. He stressed that the structure of the Bill should be examined.
He continued that the existing Act operates on the concept of the sovereignty of Parliament. In other words, Parliament determines its own powers and privileges. The committee has to pass a Bill that does not act under the sovereignty of Parliament but under the sovereignty of the Constitution because the Constitution itself has defined a number of Parliament's powers and privileges. Section 58 of the Constitution deals with privileges. This section of the Constitution could be seen as the founding document of Parliament's powers and privileges. The second aspect was how the public should behave in respect to Parliament. These were two separate issues.
He felt that it should be determined whether the privileges of Members of Parliament should be dealt with in the Parliamentary Rules or by further legislation. Similarly, it should be considered if the public should be dealt with through the Rules or through legislation. He said that his old fashioned view was that the privileges of Members of Parliament should be dealt with in the Rules and the public by legislation as they fall out of the Rules. Thus the Bill raised a number of matters where there is an overlap between the provisions of the Constitution (the core powers) and how it is being fleshed out either in terms of the Rules or legislation.
Imam G Solomon (ANC) wanted to know if the Bill was to be open to the general public for comment or were certain sectors of the public going to be earmarked to make a comment on the Bill. He pointed out that this was a specialized Bill with complex concepts.
Advocate Meyer (State Law Advisor) replied that a Bill or a Draft Bill should be published and be open for comment by anyone in terms of Rule 239 read with Rule 241 of the National Assembly Rules. The is a period of at least three weeks after the publication of the Bill to comment on the proposed legislation. However, the committee can invite comments from specific persons or institutions.
Adv. J De Lange (ANC) expressed his view that the committee cannot wait any longer. He agreed that there are problems with the Bill. There was already an existing Draft Bill and the committee had to continue on the basis of that draft. It is easier if the Bill is sent to academics and others who have a particular interest in the subject matter of the Bill for comment. This will compile all the important issues that are to be included in the third Draft. The problems that Mr Eglin had raised will be picked up in the process. This was possibly the quickest way to enable the committee to move forward in dealing with this Bill. The committee could invite public comments by August when Parliament resumes. Thereafter the committee has to set up a public hearings to deal with those submissions. This would allow the Bill to be passed before the end of the year.
The Chairperson asked whether the committee should publish the second or the third draft of the Bill for comment.
Mr Cassim said that the committee first needed to tidy up the draft and then ask for public opinion.
Mr Landers said that Mr Cassim is overlooking the committee's time constraints. The House had given this committee a certain time period to enable it to finish its work. Secondly, there is a court judgment that the committee needed to take heed of. He pleaded that the committee should go along with De Lange's proposal of releasing the Bill as is for comment. The Bill can be refined after the committee has received public comments.
Mr Eglin then asked if the committee should do nothing to the Bill until the public has been invited to comment. The majority of the members seemed to agree.
The Chair asked for some comments from the Law Advisor.
Adv. Meyer replied that if that was the case, i.e. the publication of the second draft, Adv. Meyer replied that was no obligation in terms of the Rules for the committee to publish the second draft of the Bill. Deciding to proceed with the second draft was a matter of policy and time constraints.
Mr Landers commented that the Bill could be amended and be rewritten as Adv. De Lange had suggested He recommended that the committee should advertise now for comment so that as soon as it returns after recess, it could listen to the submissions.
Mr Eglin maintained that there was a need to tidy up the Bill before publishing it for comment.
The Chairperson noted that there would be a joint workshop with the NCOP Ad Hoc Committee where a way forward would be found particularly on the issue of whether amendments should first be effected to the Bill.
The meeting was adjourned.
POWERS AND IMMUNITIES OF PARLIAMENT BILL (Latest Draft -13/6/2001)
Introduction of bill by committee of the National Assembly
1. Terms of reference of the Committee
According to the Assembly Resolution of 5 April, the Ad hoc Committee is to consider the recommendations of the Joint Subcommittee on Powers and Privileges and introduce a bill in accordance with chapter 13 of the National Assembly Rules, and specifically comply with the relevant provisions of National Assembly Rules 239 and 240.
The Ad hoc Committee should exercise those powers in terms of NA Rule 138 (which pertain to the general powers of committees) that may assist the committee in carrying out its task.
2. Constitutional Provision
Section 57(1)(b) of the Constitution, 1996, states that the National Assembly may make rules and orders concerning its business, with due regard to representative and participatory democracy, accountability, transparency and public involvement. Section 73(2) provides for the introduction of a bill in the Assembly by an Assembly committee.
3.Submission of legislative proposals to Speaker
National Assembly Rule 238 (1) requires that an Assembly committee intending to introduce a bill in the Assembly must, for the purpose of obtaining the Assembly's permission, table a
memorandum to that effect.
Comment: The permission of the House is implied by the Assembly Resolution as well as the mandate given to the Joint Subcommittee on Powers and Privileges, therefore the Assembly has already granted permission.
4. Preparation of draft bill
NA Rule 239 (1) states that the committee must -
a. prepare a draft bill and a memorandum setting out the objects of the bill;
b. consult the JTM (Joint Tagging Mechanism) for advice on tagging; and
c. comply with Rule 241 (prior notice and publication of draft legislation).
Comment: The Ad hoc committee, basing its deliberations on the -second draft" bill and the subcommittee minutes of 4 April 2001, will formulate the draft bill and the memorandum in terms of 239(1).
5. Consideration of draft bill before introduction
NA Rule 240 requires the committee, before introducing the bill, to -
a. arrange its business in such a manner that interested persons and institutions have a period of at least 3 weeks after the draft bill or particulars of the draft bill have been published to comment on the proposed legislation;
b. give officials an opportunity to state their case; and
c. consult the JTM with regard to classification.
Comment: Rule 239 (3) states "the committee must report to the Assembly when it publishes the draft bill." The report to the Assembly would be in the form of an ATC entry. According to Rule 239 (2) if the committee chooses to publish the draft bill, it is not bound to publish the bill as it is to be introduced. Instead, the committee may publish any version of the draft bill prepared by it. The Committee may publish either the full version of the bill or a summary thereof.
6. Introduction of bill
Once the committee has agreed on the bill to be introduced, the committee must introduce the bill in accordance with NA Rule 243. Briefly stated, the Rule provides for the submission of the bill (via Legislation and Proceedings Section) to the Speaker, an explanatory summary and a supporting memorandum.
Comment: A bill initiated by an Assembly committee may be introduced only when the Assembly is in session.
7. No Referral of bill to committee
Rule 247 (7) states that Subrule (5)(a) and (b) (providing for referral to a committee) does not apply to a bill initiated and introduced by an Assembly committee. Instead, the bill must directly be placed on the Order Paper for Second Reading (after the JTM has classified the bill in terms of NA Rule 244).
4 June 2001
Dear Mr Mokaba
STATUS OF RECOMMENDATIONS BY JOINT SUBCOMMITTEE ON POWERS AND PRIVILEGES
You asked for information about the status of the document entitled "Second Draft - Powers and Immunities of Parliament Bill 94/4/2001]".
From the draft Minutes of the last meeting of the Joint Subcommittee (see document pack) it would appear that at that meeting, the second draft was still being worked on and discussed. This may be concluded from the many instances in the Minutes where issues were referred for further work, eg the last paragraph under 2.2, the last sentence under 2.3, the last paragraph of 2.6, and paragraph 2.7 and 2.8 - to name only some of these instances. It therefore seems reasonable to conclude, from these and other instances, that the stage of finalisation of the draft had not been reached.
Furthermore, it appears that some of the issues referred for further work still require decisions on matters of principle (see for example 2.6 [2nd last para on p 6], 2.7, 2.8, and 2.12).
The National Assembly resolution referring this matter to the ad hoc committee (National Assembly Minutes, 5 April 2001) refers to "recommendations" being referred. (The NCOP Minutes refer, however, to referral of "the draft bill".)
SECRETARY TO THE NATIONAL ASSEMBLY
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