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AD HOC COMMITTEE ON THE POWERS AND PRIVILEGES OF PARLIAMENT (NA)
AD HOC COMMITTEE ON THE POWERS AND PRIVILEGES OF PARLIAMENT (NCOP)
13 September 2001
POWERS AND IMMUNITIES OF PARLIAMENT BILL: WORKSHOP
Joint Chairpersons: Mr Mokaba (ANC) – NA; Mr Moosa (ANC) – NCOP
Documents handed out
Powers and Privileges on Parliament Bill
The meeting took place in a workshop format. The aim of the workshop was to determine what powers and privileges a parliament can enjoy. Mr Anton Meyer, the Parliamentary Law Advisor went through the Bill explaining the clauses as he went along. Mr K Hahndiek, Secretary to the National Assembly, was present to give his views on the clauses
Mr Mokaba by way of introduction said that the basic question that needs to be answered is what powers and privileges a parliament such as South Africa’s should enjoy. He said that the Bill should be a benchmark against the best practices in the world.
Mr Moosa made a few introductory remarks. He said that the Bill deals with the powers and immunities for the National Assembly and the NCOP. The Constitution says that a law must be passed to deal with this. They need to decide if they should have two separate laws, one for the National Assembly and one for the NCOP, or if they should have only one piece of legislation to deal with everything. Politically the argument is that there should be only one law for all public representatives. The workshop must address this issue. Some provinces have already drafted their own legislation. This Bill is in fact modelled on the Northern Province’s legislation. Kwazulu Natal has no legislation of this nature and the Western Cape has something different to everyone else. It is not rational that there are so many pieces of legislation dealing with powers and immunities. There is a view emerging that there must be one law for the National Assembly and the NCOP. The provinces will be allowed to enact their own legislation but not contrary to this Bill. If they are to adopt this view, then they need to decide soon, even at that workshop.
Mr Anton Meyer proceeded to go through the Bill.
He said that the Bill replaces the old Act 91 of 1963 and all the amendments thereto. The old Act codified the privileges to some extent and to some extent it did not. It incorporated the law as it was at the time of Union in 1910. The Constitutional Court found this Act to be inconsistent with the Constitution.
The long title states that the aim of the bill is to define certain powers and privileges of Parliament.
Clause 1 – Definitions
Mr Moosa said that the definition of ‘member’ has to be looked at because it excludes certain situations. Members of the NCOP have speaking rights in the provincial legislatures and the committees and surely there must be some kind of protection for them.
Clause 2 – Precincts of Parliament
Mr Meyer said that this clause defines what encompasses the precinct of Parliament. He suggested that the members look at this clause and see if all the possible areas are covered.
A member referred to clause 2(e) that refers to any building used for parliamentary proceedings and asked whether something such as a town hall falls under the definition.
Mr Meyer confirmed that if a town hall were used for parliamentary proceedings then it would fall within the ambit of the definition.
A member asked whether a constituency office is included.
Mr Meyer said it did not and in his opinion a constituency office should not because it had nothing to do with the proceedings of Parliament. The purpose of the Bill is to allow Parliament to function properly not to benefit members.
Mr Moosa asked about the local government representatives in the NCOP and that they should be afforded the same protection.
Mr Meyer advised that the local government reps do fall under the ambit of the Constitution and other legislation, but to make it clearer that they also enjoy the privileges and immunities, he will make sure that it is sufficiently covered in this Bill.
Clause 2(2) states that the Chairperson and the Speaker have control over the precincts of Parliament.
Chapter 2 – Freedom of Speech
Clause 4 – Freedom of speech and proceedings of Parliament
Mr Meyer said that to some extent this clause is covered in the Constitution because it states who has freedom of speech. The Constitution says that the Cabinet and members of the National Assembly have freedom of speech. The Constitution limits the traditional ambit of freedom of speech therefore in clause 4(1) it is stated that that the freedom of speech and proceedings in Parliament and committees may not be challenged or questioned in a court of law.
Mr Hahndiek suggested that the definition of chairperson be changed because in terms of the Rules of Parliament all chairpersons of committees can stand in for the presiding officer.
A member asked whether the President is covered in the Bill.
Mr Meyer said that the Constitution refers to cabinet members therefore the President is covered.
Mr Moosa asked if visiting leaders are covered.
Mr Meyer replied that they are not covered and he does not think that it should be covered because the Constitution specifies who is covered and to extend this would be inconsistent with the Bill of Rights.
Mr Hahndiek pointed out that foreign diplomats cannot be taken to court in South Africa.
The freedom of speech must be exercised in terms of the rulings of the Speaker. This is contained in clause 4(3)(b). Mr Meyer was concerned that this clause was very wide because a member might not know about a previous ruling of the Speaker since it is not written down. He wanted the ruling to apply only at the time it is being made.
Mr Landers (ANC) said that the operative word in clause 4(4) is ‘wilfully.’ A member must be wilfully contravening a ruling. So if he does not know about the ruling, he cannot be in contempt.
Clause 4(5) – The clause was borrowed from the Northern Territories of Australia. The proceedings of Parliament are defined so that it is clear what is excluded and included.
Mr Hahndiek was concerned about the fact that all things incidental to the proceedings are included in the definition. He reiterated that the purpose of the Bill was to protect members in their formal functioning but ‘incidental’ opens up the door too wide. By way of example he said that when a member writes down his view and passes it to another member, this does not form part of the formal proceedings.
Mr Mokaba reminded the members that the Rules Committee had referred two questions to this Committee. The first was the issue of the penalties and the second was the attendance of members at meetings. He urged the Committee to focus on this.
Mr Meyer turned to Clause 9 that deals with penalties to accommodate the Chair’s request.
Clause 9 – Penalties
Mr Meyer said that the Supreme Court of Appeal had a problem with suspensions because no provisions in the Rules of Parliament or in any law allowed for a member to be suspended. A member could be suspended for disrupting Parliament but this was the only reason. In his view the Supreme Court would now be satisfied that a member could be suspended as the Bill now contains a specific provision to this effect. Mr Meyer was however concerned that this clause could be unconstitutional because if the representative of a one member party is suspended, the people who voted him into Parliament would be unrepresented.
Mr Palmer (State Law Advisor) suggested that the suspension of a member is nothing more than a glorified holiday and is not effective as a form of penalty especially since the member would receive full pay. Innocent people should not be deprived from representation.
A member asked if a party had a right to replace suspended members. The members said it did not have the right.
Another member asked if they are thinking of introducing something more forceful that a suspension.
Mr Mokaba understood the rationale behind the question and said that a suspension does not discourage the kind of behaviour they are intending to discourage. It was also questionable that the suspended member still gets a salary. He suggested that they look at the possible sanctions that they can impose against members who abuse the freedom of speech.
Mr Hahndiek could think of many international examples where behaviour was so bad that the House could not function. For this reason they need to think about harsher sanctions for more serious offences.
Mr Meyer was requested by Mr Moosa to toughen up the Penalty clauses.
Mr Meyer pointed to 9(5) and said that this clause can be amended to deal with the salary position of the suspended member.
Mr Meyer told the members that they needed to decide the extent to which members judged other members. Under the old Act, the parliament acted like a court. In the Northern Province if a member of the public acts in contempt, the person will be dealt with in the courts while members are dealt with by the house. They need to ask whether the House is the right vehicle to do this and if it is equipped to do this. The question of natural justice needs to be considered and also whether the House can comply with the requirements of natural justice.
A member remarked that they are here to give Parliament the necessary powers to punish members and remedy the De Lille matter.
Mr Landers suggested hat a retired judge be used to consider cases against members. This would address the concern of members sitting in judgement of other members.
An opposition party member was concerned that members of minority parties would be judged more harshly than members of the majority party if they allow members to judge members. For this reason members cannot sit in judgment of other members.
Mr Moosa said that Parliament was only accountable to the Constitution and the rule of law and was obliged to follow the rules of administrative justice. If Parliament abides by these constraints, then they do not need to refer the judging of members to outside of Parliament.
Mr Hahndiek referred to the Rules of Parliament and said that the Speaker is given the responsibility of deciding immediately, without following any process, to remove a member. The only limitation is that the Speaker must act reasonably. If the Speaker acts unreasonably, then there will be political consequences that the Speaker will have to face. In his view it is important that the Speaker must have the right to remove members.
Mr Moosa agreed and said that because the Speaker must have this power, this is exactly why an outside process cannot work.
A member said that another possibility was the formation of ad hoc committees so there is no reason why a process has to be referred to outside Parliament.
Mr Moosa said that they need to think about what the due process is that they need. He said that judges do not appoint members - they merely administer the oath and therefore they should not be allowed to remove members.
Mr Landers reminded everyone that everything Parliament does, could be reviewed in a court of law. This might be expensive but at least there is an avenue to complain.
Mr Moosa wanted to know if it could be agreed that there must be the power to act immediately in certain situations and that they need to add some kind of review procedure / due process mechanism.
Mr Meyer suggested that there could be a permanent committee that can hear all the cases. They can then look carefully at the composition of the committee. He pointed out that at the end of the day any proposed decision would be voted on in the house.
Mr Moosa asked for direction from the members on how to proceed with the Bill because there was still many issues to consider.
Mr Mokaba noted that the workshop was scheduled for two days and that this was a good discussion. There was however very little time left and certain fundamentals cannot be ignored. How do they adequately address the issues in the remaining time?
Mr Moosa asked Mr Meyer to draft as the Committee discusses the issues. He reminded the Committee of the time frame: there is a deadline of 2 November in the National Assembly. If the Bill is going to apply to the NCOP, they have to finish by the last week in October for it to go to the NCOP. They therefore have four weeks. The Bill must not have to be amended in the NCOP again, therefore they must get all the views now to finalise the Bill. If they cannot finish, the Bill can only be dealt with next year again. It is a target of the NCOP to have a decision on the issues by tomorrow so hopefully they can achieve this in tomorrow’s meeting.
The meeting was closed.
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