Subcommittee on Review of Assembly Rules: Abuse of Privilege and Freedom of Speech: discussion

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SUBCOMMITTEE ON THE REVIEW OF THE ASSEMBLY RULES
9 March 2006
ABUSE OF PRIVILEGE AND FREEDOM OF SPEECH: DISCUSSION

Chairperson:
Advocate T Masutha (ANC)

Documents handed out
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Bill [B74-2003]
Draft Comparative Study on Abuse of Privilege and Freedom of Speech
Subcommittee on Review of National Assembly Rules: Report to National Assembly Rules Committee
Governance Model for Parliament [please email
docs@pmg.org.za]
Draft rules pursuant to the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004 – November 2005
Subcommittee on Review of National Assembly Rules: Draft Agenda for 9 March 2006

Relevant documents
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act

SUMMARY
The Committee was presented with the amendments made to the draft Rules pursuant to the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act of 2004 since its previous meeting. The amendments related mostly to draft Rule 194 on the functions of the Powers and Privileges Committees (established according to Section 12 of the Powers, Privileges and Immunities Act of 2004) and draft Rule 320 that dealt with the abuse of privilege.

After much deliberation, the Members agreed that draft rule 320(2) should be finalised at a later stage so that sufficient research could be conducted in order for the Subcommittee to make an informed decision on what constituted the abuse of privilege. The Members agreed to focus its efforts in the interim on finalising all other draft rules. Members further agreed to omit referring matters of contempt or misconduct to the political parties represented in the Assembly under draft Rule 194, as well as the list of relevant circumstances under which the Powers and Privileges Committee must consider publishing response of aggrieved members of the public.

MINUTES
Report on Powers, Privileges and Immunities of Parliament
Adv F Jenkins (Legal Services Office, Parliament) tracked the changes brought to the draft Rules pursuant to the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act of 2004, following the meeting of the Subcommittee on 13 December 2005 (refer to annexure 1 of the Subcommittee’s Notice of Meeting for 9 March 2006). Significant amendments were brought to draft Rule 194 which delineated the functions of the Powers and Privileges Committees established according to section twelve of the Powers, Privileges and Immunities Act of 2004; and, draft Rule 320 that dealt with the abuse of privilege.

The Powers, Privileges and Immunities Act required that the standing rules define everything that was deemed as contempt that was not contained in the Act. The abuse of privilege was one such an instance. Section 13 of the Powers, Privileges and Immunities Act stated that a member was guilty of contempt of Parliament if the member committed an act which, in terms of the standing rules, constituted contempt of Parliament, or a breach, or abuse of Parliament. This was dealt with in draft Rule 320(1). In draft Rule 320(2) an attempt was made to formulate a guideline for the Powers and Privileges Committee to consider whether certain speech or action would be abuse of privilege.

Adv Jenkins expressed the preference not to waive the Members’ absolute right of free speech and viewed an all-encompassing definition for what would constitute contempt under draft rule 320(2) as unnecessary. Outside of what Parliament already controlled in terms of conduct and procedure, research suggested that the specification of hate speech and malicious speech as instances of contempt may well be worthy of some consideration. Hate speech was already defined in Section 10 of the Promotion of Equality and the Prevention of Unfair Discrimination Act. Specifying malicious speech, however, could have a chilling effect on free speech in Parliament.

Discussion
Mr J Jeffery (ANC) disagreed with the specification of hate speech under draft Rule 320(2) since Section 58(1)(b) of the Constitution clearly stated that no Member would be liable to civil or criminal arrest for anything said. The linkage with whether what was said was related to the proceedings of Parliament or not seemed similarly tenuous, since it was nowhere in the Bill of Rights, nor was it in the Powers and Privileges Act.

Mr Jeffery expressed his concern for members of the public who could not respond to statements made by Members in the House, but which could affect them adversely. He acknowledged the provision in draft Rule 194(d) for a published reply by members of the public in such instances, but deemed it an insufficient remedy.

Mr Jeffery nonetheless expressed his concern over the protection of Members’ freedom of speech and suggested that more work be done on international comparisons, which could offer relief in deciding on the appropriate balance for South Africa’s legislatures.

Ms M Griebenouw (Senior Procedural Officer: National Assembly Table Division) stated that a comparative study had been requested by the National Assembly Rules Subcommittee and that the draft had been handed to the Subcommittee. She apologised for the fact that the Subcommittee had only received the document just before the meeting, but stated that it was actually prepared for the Joint Subcommittee meeting which was to only happen later. She stated that the draft did contain comparisons with what was being done in Germany, Zambia, Canada, Australia and Kenya.

Adv T Masutha (ANC) stated that since the current meeting was in preparation for the Joint Subcommittee meetings it would have been ideal to have received the comparative study earlier. He further stated that it might be of value to draw parallels between what constituted abuse of freedom of speech in the "main stream" and in the media. Once a survey was complete of the principles already established in this regard, it would be easier to determine the principles that could underlie the use of freedom of speech by Members in the House. Adv Masutha expressed his reservations over the adequacy of draft Rule 320(2) in this regard.

Mr W Doman (ANC) stated his opposition to any waiving of the Members’ rights to freedom of speech but felt that the House should have some mechanism to guard against the abuse of such rights. He felt comfortable with the inclusion of hate speech in draft Rule 320(2) but, given the nature of politics, felt weary of the inclusion of malicious speech. He stated that the right of reply for members of the public who took issue with what was said in Parliament was sufficiently provided for in draft Rule 194(d).

Adv Masutha repeated his call to distinguish between rules that govern freedom of speech outside and inside of Parliament. He stated that while some kind of sanctioning system could be developed for the abuse of freedom of speech by members, care should be taken over how such measures may approach the realm of criminality as it did outside of Parliament.

Mr Jeffery stated that because of this protection of Members from civil and criminal liability, Parliament should have a disciplinary procedure to ensure that this protection is responsibly utilised by Members. Hate speech was indeed a good example of such instances. Members needed to be held accountable for their conduct in this regard. He suggested that sanctions could include fines and suspensions. Simply calling a Member to order was not sufficient since the offending statement could still stand. It also did not prevent the offending statement from being published by the media.

Referring back to the comparative study on abuse of privilege and freedom of speech, Mr Jeffery lamented that it did not define what constituted abuse of privilege in other legislatures.

Adv Masutha stated that it was a matter that the different political parties also had to apply their minds to, since it affected everybody.

Mr Jeffery asked why it took so long to draw up the comparative study.

Ms Griebenouw stated that she had been unaware of a request for the document until the previous day.

Mr V Ngaleka (Committee Secretary / National Assembly Table Division Procedural Officer) stated that letters were sent to other legislatures requesting the information according to the brief provided by the Subcommittee in November 2005. The first responses from other legislatures had been received towards the end of January. The document had been composed over the previous three weeks.

Adv Masutha asked whether the document relied solely on these responses, or whether there was capacity to do independent secondary research.

Ms Griebenouw suggested that further requests for information should be done telephonically.

Mr Jeffery ventured that the fact that such commissioned research were being done by Table staff pointed to a lack of research capacity at Parliament. He stated that there must be sources of secondary information available, such as the Commonwealth Parliamentary Association’s Journal. Mr Jeffery stated that having such a document ready by the next Joint Subcommittee meeting only would not be viable, since there were key issues that the parties needed to deliberate on.

Adv Masutha opined that the responsibility for drafting a document such as the one in question could not only lie with the National Assembly Table Division, but had to be done in consultation with the Legal Support Office. He stated that perhaps the possibility should be investigated of Parliament allocating a researcher that could work on the Commissioned document, together with the Table staff, the Legal Support Office and the Secretariat of the Committee. He saw this as necessary, since the Subcommittee required good research to base its decisions on rather than a mere information document. Adv Masutha stated that perhaps the matter needed to be referred to Mr K Hahndiek (Secretary to the National Assembly) to ensure that the support provided to the subcommittee was sufficiently integrated.

Mr Jeffery gestured to the need for the Subcommittee to review its brief for the research to ensure it would meet with the requirements of the task at hand. He specified that the Subcommittee needed to have comparative research done on the abuse of privilege in other jurisdictions, and otherwise concurred with Adv Masutha.

Adv Masutha added that when it came to something such as the commissioning of research, the Members serving on the Subcommittee should rather strive to be clear about their requirements instead of being prescriptive about whom the task should be allocated to.

Adv Jenkins agreed with the Members’ sentiments surrounding the issue of hate speech as an abuse of privilege, and limiting the exposure of Members to criminal and civil liability in such instances. He confirmed that members may waive their right to freedom of speech and that Parliament may not. Adv Jenkins felt it prudent to remove the provision for actions unrelated to the proceedings of Parliament from draft Rule 320(2) since such actions would not be covered by Members’ privileges anyway. He stated that it was the nature of what was being said rather than the precincts of Parliament that defined the scope of Members’ privileges.

Adv Jenkins stated that draft Rule 320(2) basically amounted to contempt of Parliament. If Parliament considered the abuse of freedom speech a breach of the rules as set out in chapter five of the National Assembly rules, the question arose whether to put these rules within the ambit of a limitation on free speech in the house. He explained that should somebody feel aggrieved by what was said in Parliament, the offending Member could resort to Section 58 of the Constitution which stated that Members were guaranteed freedom of speech in the house subject to the rules and orders. A court could then have a look at the Parliamentary rules and orders to determine whether these were in line with the Constitution. It was for this reason that he saw no need to put further limitations on freedom of speech under draft Rule 320(2) aside from hate speech, which was already defined in section ten of the Promotion of Equality and the Prevention of Unfair Discrimination Act.

Advocate Jenkins further indicated that it was not clear cut whether it was sufficient for an aggrieved member of the public to have his or her response recorded to an offending statement made in the House. He mentioned the possibility that where an untruth was discovered, it could also be construed to constitute an abuse of privilege.

Adv Jenkins explained that the National Assembly Table Division and the Legal Services Office did communicate with each other, but that they did not co-operate on the composition of the Draft Comparative Study on Abuse of Privilege and Freedom of Speech. He committed the Legal Services Office to co-operate with the Table staff in the manner requested by the Members. Given that it was almost two years since the Powers, Privileges and Immunities Act came into power, Adv Jenkins felt it prudent to get other rules into place while the issue of abuse of privilege was being scrutinised further.

With regard to the amendments brought to draft Rule 194, Mr Jeffery was opposed to the inclusion of referring matters of contempt or misconduct to the political parties represented in the Assembly under draft Rule 194(b)(i). Mr Jeffery further questioned the necessity of including the list of relevant circumstances under which the Powers and Privileges Committee must consider publishing response of aggrieved members of the public under the rules as it was in draft Rule 194(d)(iv) when it essentially equated to a list of guidelines. Mr Jeffery also suggested that draft Rule 194(d)(v) be scrapped and integrated into draft rule 194(d)(iv). Since Abuse of Privileges constituted a section on its own Mr Jeffery felt that it should be left until a later stage in favour of finalising Section 194 and what went before it. Finally, Mr Jeffery questioned the necessity for the exception of a breach of the Code of Conduct under the definition "misconduct" under draft Rule 1.

Adv Jenkins agreed with Mr Jeffery on draft Rule 194(b)(i) since referring matters of contempt or misconduct to the political parties represented in the Assembly could turn into no more than another procedural hurdle, or yet another line of procedural defence. He concurred with Mr Jeffery on the elimination of the list of relevant circumstances under which the Powers and Privileges Committee must consider publishing response of aggrieved members of the public under the rules, since the Committee could just as well determine its own procedure in the same manner as all other Parliamentary committees do. He was also in favour of integrating draft Rule 194(d)(v) under 194(d)(iv).

On the issue of the definition of "misconduct" Adv Jenkins replied that as per Section 13 of the Act, contempt implied a modicum of negligence, whereas misconduct did not. He did concede that it complicated matters, but stated that it was essentially a policy decision.

Given Adv Jenkins response, Mr Jeffery withdrew his comment concerning the definition of "misconduct".

Given that draft Rule 194(a) formed a general introduction to the more specific draft Rules 194(b), 194(c) and 194(d), Mr Jeffery suggested that the numbering be amended to 194(1), 194(2)(a), 194(2)(b) and 194(2)(c) respectively.

Adv Masutha, in turn, suggested that 194(a) simply be kept as the opening statement of the entire draft Rule 194, and that 194(b), 194(c) and 194(d) be renumbered to 194(a), 194(b) and 194(c).

Adv Jenkins declared himself in favour of Mr Jeffery’s suggestion, but added that the duplication of draft Rule 194(a) in 194(d)(i) could see 194(d)(i) and 194(d)(ii) integrated into one subsequent to some possible redrafting. The Members agreed.

After finalising some matters related to the scheduling of future meetings, the Subcommittee adjourned.


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