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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
29 August 2001
DIPLOMATIC IMMUNITIES AND PRIVILEGES AMENDMENT BILL: BRIEFING
Chairperson: Adv J H de Lange
Diplomatic Immunities and Privileges Amendment Bill [B40-2001]
Presentation on the Diplomatic Immunities and Privileges Amendment Bill
The Committee met with members from the Justice Committee of the Irish Parliament and discussed issues faced by their respective Committees. A briefing was given on the Diplomatic Immunities and Privileges Amendment Bill which incorporates the UN Conventions on Privileges and Immunities of the United Nations and Specialised Agencies. It was felt that since the Amendment Bill provided for so many alterations to the principal Act and was confusing in its references, it would be better to redraft the Amendment Bill so that it repealed the principal Act and formed one consolidated Act. The definition given to "family member" and the word "provided" in s10 of the Bill should also be reconsidered.
The Chair welcomed the Irish delegation - members from the Justice Committee of the Irish Parliament. Brendon Howlin (Irish MP) thanked the chair and expanded on the duties of the Irish Justice Committee before introducing the other members of the delegation. The Chair introduced those members of the South African Justice Committee that were present. He explained that the Committee system was entrenched within the South African Constitution. He then described the functions of the Committee and the problems experienced, such as a lack of funding. The Irish Delegation thanked their South African counterparts for meeting with them and being so open.
Members of the Foreign Affairs Department and Select Committee of the NCOP then joined the meeting. Mr Moosa was selected as chair for the duration of the meeting
Diplomatic Immunities and Privileges Amendment Bill
Ms De Wet, principal state law adviser, stated that the principle reasons for amending the Bill were that Parliament had approved South Africa's accession to the United Nations Conventions on Privileges and Immunities of the United Nations and Specialised Agencies on 26 and 27 of June 2001 and that there is a legal obligation to incorporate these provisions in South African legislation. Further reasons were that the application of immunities and privileges to international organisations/ specialised agencies was being done without a proper legal basis and on an ad hoc basis without equality in treatment of the various organisations. There is no provision made in the Act for the granting of privileges and immunities for the increasing number of international meetings and conferences hosted by South Africa and the Act is outdated as international relations have grown extensively since 1989 when the Act was promulgated.
The objectives of the Amendment Bill were to bring the Act in line with South Africa's international obligations by incorporating the UN Conventions on Privileges and Immunities on UN Specialised Agencies in South African legislation, incorporating all the provisions of the Conventions on Diplomatic and Consular Relations in South African legislation, harmonising ad hoc practices and equality of treatment of the various international organisations and providing for the granting of immunities and privileges with regard to international meetings and conferences.
Proposed amendments begin with definitions of "member of a family", "organisation", "special envoy or representative", "specialised agency", "conventions" and "Act". Sections 2, 3 and 4 provide for a clear distinction between granting of immunities and privileges to diplomatic missions and consular posts, heads of State and special envoys, United Nations, Specialised agencies and organisations, and international conferences and meetings.
The purpose of the amendments reflected in the remaining sections 6 to 17 were to bring the sections in line with the provisions of the Conventions, to delete any duplications, to correct any contradictions and to lessen the administrative burden. The sections deal with matters such as exemption from taxation, exemption of governments, organisations and institutions in respect of immovable property, liability insurance requirements and the application of immunities and privileges to South African citizens or permanent residents. Sections 18 and 19 insert Schedules 2A and 2B reflecting the full text of the Conventions on the Privileges and Immunities of the United Nations of 1946 and of the Convention on the privileges and immunities of the specialised agencies of 1947. General provisions provide for the recognition of the UN Laissez Passer as a travel document and the expeditious issuing of visas to holders.
Mr Moosa, the Chair, enquired whether it was necessary to amend the principal Act so extensively and would it not have been better to enact a new Act.
Ms De Wet replied that it would have been easier but that the drafters had acted on instructions from the Department of Justice.
Mr Moosa, the Chair, asked if it was still possible to draft a new Act and how many provisions of the principal Act had not been touched.
Ms De Wet answered that sections 10, 13, 20 and 21 had not been amended.
Mr Moosa felt that because the principal Act had been amended so extensively, a new Act should be drafted incorporating the provisions.
Dr Delport (DP) supported the suggestion and felt that the Amendment Bill was confusing and not "user-friendly" because of the constant references to sections of the principal Act. He also felt that provision for reservations to the Conventions mentioned on page 82 of the Bill should be included in the main body of the Act and not the Schedule.
Adv de Lange (ANC) was unsure as to how the principal Act makes reference to the Schedules. He felt that it was a problem to incorporate international Conventions in total as Schedules and that it would be better to incorporate the provisions of the Conventions in the main body of the Act. He felt that the Bill needed to be redrafted. A further cause of concern was the extended definition given to "family member" because subsection (d) allows for any person designated by the sending State to be a family member.
Ms Chohan-Kota (ANC) agreed with the opinions of Dr Delport and Adv de Lange and enquired whether a phrase in section 10 of the Bill should read "funds approved by Parliament" rather than "funds provided by Parliament" as it stated.
Dr Adams (Department of Foreign Affairs) stated that his view was slightly different. He felt that the amendments should each be considered on their merits and then a consolidated Bill should be drafted incorporating the amendments that could then be certified by a State legal adviser as being in accordance with the amendments.
Mr Moosa, the Chair, believed that changing the law regulating diplomatic immunities and privileges so substantially was in effect passing a new law.
Ms De Wet replied that there would eventually be a consolidated Act but the law adviser dealing with this was not present to state why the amendments were currently preferable. She did agree that there was a lack of mention made to the Schedules but that the intention was to make the international community aware of the fact that the UN Conventions were being applied by naming them rather than referring to the Schedules. With regard to s1(a)(d) regarding family members, it was felt that the provision should be incorporated to alleviate problems experienced with unmarried spouses and illegitimate children by placing the onus on the sending State to declare them as family members and issue them with diplomatic passports. In other countries, the categories of persons mentioned under ss(a) to (d) are all issued with official passports.
Dr Delport (DP) enquired where the definition of "family member" was used in the Bill.
Ms De Wet replied that it was mentioned in Art 37 on page 28 and was mentioned in the Conventions.
Mr Moosa, the Chair, concluded by mentioning the main points of the meeting: the Committee would like to see a redraft repealing the old Act and including the conventions in the Act rather than keeping them apart, the word "provided" in s10 should be looked at again as well as the definition of "family member".
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