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SUBCOMMITTEE ON REVIEW OF ASSEMBLY RULES
15 August 2006
DRAFT RULES ON BREACH OR ABUSE OF PARLIAMENTARY PRIVILEGE: BRIEFING
Chairperson: Adv M T Masutha (ANC)
Documents handed out:
Further discussion on Rules relating to breach or abuse of parliamentary privilege
The Committee continued discussions on the National Assembly Draft Rules, specifically looking at breach or abuse of Parliamentary Privilege. Adv F S Jenkins, Parliamentary Legal Adviser, presented research he had conducted on Draft NA Rule 194 relating to the referral of matters to the to-be established Powers and Privileges Committee and Draft NA Rule 320, specifically concerning additional forms of contempt of Parliament as referred to in the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004.
Members focused on whether "conduct that infringed on the dignity of the National Assembly of Parliament" should be dealt with as a matter of breach of privilege or under misconduct. Members also sought clarity on other forms of recourse available to the House in such cases. The Committee will continue its discussion of the Draft Rules at a future meeting.
Presentation by Parliamentary Legal Adviser
Adv F S Jenkins, Parliamentary Legal Adviser, presented research he had conducted at the request of the Committee, which examined Draft National Assembly (NA) Rule 194 relating to the referral of matters to the to-be established Powers and Privileges Committee and Draft NA Rule 320, specifically concerning additional forms of contempt of Parliament as referred to in the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004.
Draft Rule 194
Adv Jenkins outlined the objective of Draft Rule 194, which prescribed that only the Speaker of Parliament would be responsible for referring matters directly to the Powers and Privileges Committee.
He outlined a discussion point on whether the Deputy Speaker, a House Chairperson or other Member should be permitted to refer matters directly to the Powers and Privileges Committee. He stressed that it was his legal opinion that this could result in practical problems.
Draft Rule 320
Adv Jenkins explained that Draft Rule 320 dealt with breaches or abuse of privilege. He had specifically been asked to look at whether Draft Rule 320 could be expanded to include the words "defamatory speech" and/or "conduct that brings the House into disrepute". To this end, he had investigated the wording of foreign Constitutions. He explained that because most Constitutions made no reference to freedom of speech in their legislature, they consequently made no mention of limitations on free speech. He highlighted Germany and Mozambique as countries that specifically dealt with defamation in their Constitutions. Namibia on the other hand dealt with the matter by prescribing that maintaining the image and dignity of the National Assembly was a duty and therefore dealt with it in a different manner.
He explained to the Committee that there were two methods by which "defamation" and "conduct that brings the House into disrepute" could be dealt with. These could be inserted into Draft Rule 320 or the definition of misconduct in Draft Rule 1 could be expanded to include the text.
The Chair thanked Adv Jenkins for his report, and asked for comments from Members.
Mr J Jeffery (ANC) had a particular concern regarding any proposal to extend Draft Rule 320 to include conduct that infringed on the dignity of the National Assembly of Parliament as a breach of privilege. He felt that this was not in principle an abuse of privilege and questioned what privilege would be abused by infringing on the dignity of Parliament. He stressed that there were other disciplinary measures for holding Members to account other that extending Draft Rule 320.
However he was convinced that defamation should be included in Draft Rule 320 as a breach or abuse of privilege. This was clearly an abuse of privilege precisely because Members were not subject to civil or criminal liability for remarks made in the NA, which was indeed a privilege.
Adv Jenkins agreed that defamation was definitely an abuse of privilege. He reiterated that the alternative would be to incorporate the term "conduct that infringed on the dignity of the National Assembly" into the definition of misconduct. He explained that misconduct was currently limited only to breaching the existing Rules. He stressed that infringing on the dignity of the National Assembly was a very broad term, which could possibly include abuses such as sexual harassment, misuse of travel facilities or constituency offices. The Committee should consider whether the term needed to be further clarified, or left deliberately broad to “catch the unforeseen”.
He sympathised with Mr Jeffrey’s argument on the separation of these provisions, but cautioned the Committee against creating a situation whereby a myriad of different channels existed for recourse against inappropriate behavior. This would open the doors to victimisation, Members being charged with breaching the code of conduct, and if that was not successful, charged with abuse of privileges and the misconduct.
Mr K Hahndiek (Secretary to the National Assembly) believed that there were circumstances where a remark made in the House was so outrageous that it would not wish the matter to be referred to the Section 12 Committee, but rather the House as a body politic should have the authority to exercise suspension as a response. He reminded the Committee that there would of course be political consequences if the House abused this power. He questioned whether this would be permitted.
Adv Jenkins explained that in terms of the Power and Privileges and Immunities of Parliament and Provincial Legislatures Act as it currently stood, any abuse of privilege or breach of Rules that amounts to contempt of Parliament had to be considered in terms of a fair procedure. He felt that the Act had in effect attempted to remove that kind of political dynamic from the process. He stressed he could not give a definitive answer on the issue; it would need to be tested in Court.
Mr Jeffrey’s concurred with the Chair’s comments, but raised concern that Mr Hahndiek's body politic suggestion could be open to abuse with the House passing resolutions without following due process. He reminded the Committee that the presiding officer already possessed the power to expel. He saw no reason why such matters should not be channeled through the Section 12 Committee.
He pointed out that the concerns about defamation were not regarding Members making defamatory remarks about each other, but rather those outside Parliament who did not have the opportunity to defend themselves. He noted that the only thing a member of the public could do would be to apply for their response to be recorded and it could take up to six months for the response to be published. There needed to be some form of protection against defamation in order to preserve parliamentary integrity and public perception of the House.
He was however of the opinion that the term “defamation” needed to be refined to “malicious defamation” as the Committee had at one stage discussed. He firmly believed that "conduct that infringed on the dignity of the National Assembly" should be included as a misconduct issue and not an abuse of privilege.
Adv Jenkins pointed out that the inclusion of defamation within the abuse of privileges was not without problems; it could be argued that this would cause a "chilling effect" on free speech within Parliament with Members scared of speaking in case they have R100 000 claims instituted against them. From a legal perspective, he did not see a problem with making defamation a limitation on freedom of speech in the House. It could even be included in the Rules or likewise by practice as precedent developed.
The Chair thanked Members for the debate and noted that these were issues Members would need to consider further in future.