Outstanding Bills at Expiry of Term of House
MEMORANDUM
[for info]
TO: CHAIRPERSON: PORTFOLIO COMMITTEE ON HEALTH
FROM: PARLIAMENTARY LAW ADVISERS
DATE: 22 FEBRUARY 1999
SUBJECT: CAN A NEW NATIONAL ASSEMBLY RESURRECT A BILL
THAT WAS STILL IN THE LEGISLATIVE PROCESS PRIOR TO THE EXPIRY OF THE TERM OF THE HOUSE
A legal opinion has been requested by the Chairperson of the above Portfolio Committee on whether a new National Assembly can resurrect a bill that was still n the legislative process prior to the expiry of the term of the House.
Section 49(1) of the Constitution provides that the National Assembly is elected for a term of 5 years; the current term expires on 30 April 1999 [Schedule 6 item 4(2)]. When its term expires, the President must by proclamation call and set dates for an election, which must be held within 90 days of the date the Assembly's term expired. Upon expiry the Assembly ceases to exist and cannot perform its legislative functions. However, in terms of section 49(4) the National Assembly remains competent to function until the day before the first day of polling for the next Assembly. Any outstanding standing proceedings of the Assembly come to an end when its term expires [The Theory and Practice of the Dissolution of Parliament - BS Markenisis, pgs. 15-16].
The question now arises, what happens to bills that are still in the legislative process after the expiry of the term of the Assembly?
The view of the above author is that expiry of the term of the Assembly terminates all legislation pending in Parliament. This is so because the new Assembly cannot inherit and be responsible for the activities if its predecessor to which it has not contributed at all. The unfinished work may also run counter to the national feeling expressed in the new Assembly.
A provision relating to the resumption of the legislative process to pass a bill after the end of an annual session is contained in the current National Assembly Standing Rules: "141. (1) An order of the day in respect of any public bill which is in the possession of this House when it rises on the last sitting day in (any year, shall lapse, but may be reinstated on the Order Paper during the next ensuing session by resolution of this House." However, this Rule does not make specific provision for bills in the legislative process when the Assembly's term expires.
One would have to examine the provisions of the Constitution in order to determine whether it would be valid for a new Assembly to resume the legislative process on a bill that was introduced in a previous Assembly. Section 43 states that the legislative authority of the Republic is vested in Parliament. It is stated further in section 44 that in exercising its legislative authority, Parliament is bound only by the Constitution. Section 57 states that the National Assembly may determine and control its internal arrangements, proceedings and procedures [similar provisions relating to the National Council of Provinces are to be found in section 70(1)]. The Constitution also nowhere prohibits the resumption of the legislative process by a new Assembly for a bill in the legislative process of a previous Assembly.
The practice at Parliament in the past has been that a new Assembly may pass a resolution to resume the legislative process in relation to a bill of the previous Assembly that is still in the legislative process. On one of the first sitting days of the Eighth Parliament, namely, 20 May 1987, the following resolution was passed in the Assembly: "That notwithstanding the provisions of Rule 40 the proceedings in connection with the following Bills be resumed at the stage they reached in the previous session:". Rule 40 read as follows: "The proceedings on any public bill which lapsed owing to a prorogation of Parliament may be resumed by resolution of each House during the next ensuing session provided that a general election for any House or Houses has not taken place in the meantime."
With regard to the discussion above, we are of the view that both Houses may pass a resolution at the commencement of the new Assembly this year in order to resume the processing of a bill that is still in the legislative process.