STANDING COMMITTEE PRIVATE MEMBERS' LEGISLATIVE PROPOSALS AND SPECIAL
PETITIONS
March 2005
INTRODUCTION
National Parliament does not have an Act in place to deal specifically with
petitions or legislative proposals. The only thing we basically rely on is the
Rules of Parliament, which governs the functioning of the Committee.
The overriding factor to be borne in mind when dealing with Petitions and
Legislative Proposals is the principle of public participation as enshrined in
the Constitution. Members of the public should in essence feel that their
voices are being heard and that their concerns have been met by an interactive
process between themselves and their elected representatives.
A private members bill is a bill that
is initiated by a member of either House who is not a Minister. A private
member's bill is to bring to the notice of the government a matter of public
importance.
Please note that every member of Parliament, who is not a Minister or Deputy
Minister, is called a Private Member.
A petition, on the other hand, is a request either for a demand for a favour or
for the redress of an injustice. In it's simplest form, a petition is a way of
bringing grievances to the attention of the legislative authority.
Constitutional provisions giving effect to the Committee.
The Constitution (Bill of Rights), in particular, Section 17 states
"everyone has the right, peacefully and unarmed, to assemble, to
demonstrate, to picket and to present petitions".
This should be read in conjunction with Section 42 (3) which
states" the National Assembly is elected to represent the people and to
ensure government by the people under the Constitution. It does this by
choosing the President, by providing a national forum for public consideration
of issues, by passing legislation and by scrutinizing and overseeing executive
action."
Section 73 provides for three ways in which, a Bill can be introduced,
namely:
1. through the executive (ie cabinet member or Deputy Minister)
2. through a committee of parliament (but not a joint committee)
3. by means of a private members" bill.
The only limitation that this provision imposes is that only the Cabinet member
responsible for national financial matters may introduce a money Bill in the
Assembly. This means that a private member is precluded from introducing a bill
that appropriates public funds or imposes tax.
PROCEDURE WHEN DEALING WITH A PRIVATE MEMBER'S BILL
Steps prior to introduction
The primary responsibility for the drafting of the Private Members' Bills is
that of the member concerned.
The member should ensure that no duplication of the process has taken place,
for example, he/she should ensure that a Bill of a similar nature is not
pending before the House or that the House has not already given a decision on
the same.
Introduction of private members bill
Any member who introduces a bill in either House must obtain the permission of
the Assembly to do so. In order to get such permission the relevant member
would have to submit a memorandum to the Presiding Officer which:
1. sets out the particulars of the proposed legislation
2. explain the objects of the proposed legislation
3. state whether the proposed legislation has any financial implications for
the state. If so, whether those implications may be a determining factor when
the proposed legislation is considered.
The Presiding Officer will then refer the proposed legislation to the
parliamentary law advisors (Dr Palmer's Office), to check if it meets the above
-mentioned requirements as set out in NA Rule234. Please note that the
parliamentary law advisors should confine themselves to verifying whether the
requirements of NA Rule 234 have been met and no further. Once the legislative
proposal has been certified that it meets the relevant requirements, it is then
referred back to the Presiding Officer who has a duty to table the memorandum
and to refer it to the relevant Committee.
Referral of legislative proposal to Committee
The Presiding Officer will then refer the member's memorandum to the (
Committee.
The Committee is required to consult the committee within whose portfolio the
proposal falls. The Committee should at all times uphold the principle of the
proposal.
The Committee would usually enquire as to what is the position of government on
the matter.
In the Committee process, the Committee usually does not call for any
submissions or representations from members of the public on the Bill. However,
it usually calls the member responsible for the Bill to brief the Committee on
the objectives of the Bill. In instances where a government department is in
the process of initiating measures regarding the subject matter of the Bill,
the relevant member may then withdraw the proposal.
Consideration of the legislative proposal
After considering the member's memorandum and the relevant committee's report,
the Committee can choose to make one of two recommendations. It can either
recommend that permission be given to the member to proceed with the proposed
legislation or it can recommend that such permission be refused.
If the Committee recommends that the proposed legislation be proceeded with, it
may-
- express itself on the desirability of the principle of the proposal
-
recommend that the Assembly approve the proposal in principle;
-
or recommend that permission be
given subject to conditions.
The Committee must then table in the House the member's memorandum and the
Committee's recommendations to it. This should include the views of the
relevant portfolio committee with which the Committee has consulted. The House
may-
- give permission for the proposal to be proceeded with;
- refer the proposal back to the Committee or the portfolio committee concerned
for a further report; or
- refuse permission. 9
Permission to proceed with proposal
Where the House gives permission for the proposal to be proceeded with, it may
either express itself on the desirability of the proposal or subject it's
permission to conditions.
The member concerned must now prepare a draft bill and a memorandum setting out
the objects of a Bill. The JTM should be consulted for advice on the
classification of the bill and it must comply with NA Rule 241 and NA Rule 258.
The Secretary to Parliament should also reimburse a member for any reasonable
expenses incurred provided that the Speaker approved these expenses before they
were incurred.
PROCEDURE WHEN DEALING WITH PETITONS
Steps prior to introduction
The majority of petitions presented to Parliament are from individuals seeking
relief, in the form of a pension, for services rendered to the State.
Usually an individual will approach a Member of Parliament and request that he
introduces the petition on his behalf. The Member would be referred to as the
"sponsor" of the petition.
Petitions must be in the form prescribed by the Speaker in accordance with the
guidelines determined by the Rules Committee.
A petition must be in one official language and must be signed by the
petitioners themselves. (unless otherwise stated by the Speaker). This would
include persons who are unable to write to make a mark, however, it is a
requirement that the "mark" made in this instance, should be done in
the presence of two witnesses, who must sign the petition in that capacity.
The petition is then lodged by the relevant member with the Secretary for
approval and tabling by the Speaker and must be signed by that member at the
beginning of this lodgement process.
The Clerk of the Papers would refer the petition to the parliamentary law
advisors for certification. The parliamentary law advisors will check if there
is existing legislation in place that could cover the relief that the
petitioner is seeking to address and whether or not Parliament has the jurisdiction
to deal with the matter.
If the petition is approved, the Speaker must then table the petition in the
House.
Referral of Petitions to Committees
After the petition has been tabled, the Speaker will now refer the petition to
the Committee.
One should bear in mind that there are two kinds of petitions:
(a) special petitions
(b) petitions of a general nature
Should the petition be considered a special petition, it would be referred to
the Committee on Private Members' Legislative Proposals and Special Petitions. Examples
in this instance a petitioner would claim pension benefits.
Should the petition be considered a petition of a general nature, then the
Speaker must refer the petition to the relevant portfolio committee or other
appropriate committee. Examples of this would be a petition requesting
Parliament to financially sponsor someone overseas for presidential elections.
At this stage, copies of the petitions will be sent to all members of the
Committee. The committee secretary would have to write to the Chief Director of
Pension Administration, National Treasury and send a copy of the petition to
him/her for report to the Committee.
The Committee may discuss the petition but may not make recommendations until
the report from the National Treasury has been received. The Committee may call
on any official in the Department of Finance to provide the Committee with any
further information, in terms of the report, it may require.
As in the case of legislative proposals, witnesses are hardly ever summoned to
appear before the committee. A petitioner may appear before the Committee in
support of his/her petition. On occasion, the Committee has paid the
petitioner's costs if he/she was unable to do so himself/herself.
Consideration of Petition
After deliberation on this matter, the Committee will present a report to the
House for consideration. The Committee may recommend that the
- petition be granted or recommend some other form of relief
- reject the petition
When the House considers the report of the Committee it may
- accept the Committee's recommendation
- reject the Committee's recommendation
- refer the Committee's recommendation back to the Committee for further
consideration
- refer the Committee's recommendation to the government.
Granting of a Petition
Where the House grants permission for the Petition to be proceeded with, it
would adopt the Committee's report. The Minister of Finance would introduce the
Pension (Supplementary) Bill, a schedule to which contains the recommendations
of the Committee as adopted by the House. When the Bill has been passed the
petitioners are notified of the decision of the Committee.
Current Legislative Proposal before the Committee:
1. Magistrate's Courts Amendment Bill (Mr L K Joubert) (A TC 18/02105)
2.Represented Political Parties' Election Fund Bill (Mr P F Smith) (ATC
28/02105)
PMG Note : [Footnotes not included]