MEMORANDUM

From: Legal Services Office
To: Adv T M MASUTHA, MP :Chairperson: Subcommittee on the Review of the NA Rules

DATE: 8 August 2006

SUBJECT: Further discussion on rules relating to breach or abuse of parliamentary privilege

Background

1. During the meeting of the Subcommittee on the Review of the NA Rules on 20 June 2006 I was requested to comment further on:

(i) draft NA rule 194 relating to the referral of matters to the to-be established Powers and Privileges Committee; and

(ii) draft NA rule 320, specifically concerning additional forms of contempt of Parliament as referred to in section 13(d) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act, 2004 (the Act).

Referral of matters to the Powers and Privileges Committee

2. Draft NA rule 194 provides as follows:

Functions

194 (a). The Committee must consider any matter referred to it by the Speaker relating to contempt of Parliament or misconduct by a member or a request to have a response recorded in terms of section 25 of the Act, except a breach of the Code of Conduct contained in the Schedule to the Joint Rules.

3. The purpose of the rule is to ensure that only the Speaker refers a matter to the Powers and Privileges Committee. In respect of the proposed procedure, the Deputy Speaker, a House Chairperson or a member presiding at a sitting of the NA or of a committee, must refer a matter related to contempt or misconduct that arises in such a meeting to the Speaker.

4. The consideration whether to allow the Deputy Speaker, a House Chairperson or another member presiding at a sitting of the NA or of a committee to refer a matter without involving the Speaker is a matter of policy. In my opinion it could result in practical problems to permit matters of discipline to be referred directly to the Committee.

5. I await further instructions in regard to an amendment to the draft rule.

Additional forms of contempt

6. Section 13(d) of the Act provides as follows:

13. A member is guilty of contempt of Parliament if the member-

(d) commits an act which in terms of the standing rules constitutes

(i) contempt of Parliament; or

(ii) a breach or abuse of parliamentary privilege.

7. Draft NA rule 320 provides as follows:

Breach or abuse of privilege

320.

(1) A breach or abuse of the privilege provided for in sections 45(2) and 58 of the Constitution, or as set out in rule 44 of these Rules, is contempt of Parliament as envisaged by section 13(d) of the Act.

(2) The Committee established in rule 191 may make a finding that the privilege referred to in (1) above has been breached or abused only if the action complained of amounts to

(a) propaganda for war;

(b) incitement of imminent violence; or

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm.

8. The above mentioned draft follows the ambit of section 16 of the Constitution insofar as the right to freedom of expression does not extend to propaganda for war, incitement of imminent violence, or advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm. The draft rule makes the same limitation applicable to freedom of speech in the NA.

9. The question that was posed was whether draft rule 320 could be extended to include defamatory speech or conduct that brings Parliament or a House into disrepute. For this purpose I was asked to look at the wording of foreign constitutions in this regard.

10.Although not many of the constitutions make explicit reference to freedom of speech in the legislature, and consequently do not refer to any limitations, some do provide explicitly for this. An example is the German Basic Law which provides in article 46, under the heading Immunities, as follows:

"(1) At no time may a Member be subjected to court proceedings or disciplinary action or otherwise called to account outside the Bundestag for a vote cast or for any speech or debate in the Bundestag or in any of its committees. This provision shall not apply to defamatory insults [verleumderische Beleidigungen]."

11. Similarly, article 145 of the Constitution of the Republic of Mozambique provides that freedom of speech in the People's Assembly does not apply to "civil or criminal responsibility for defamation or slander."

12.Article 60 of the Constitution of Namibia provides for duties of all members of the National Assembly, which includes maintaining the "dignity and image of the National Assembly both during the sittings of the Assembly as well as in their acts and activities outside the National Assembly."

Opinion

13. Section 58(1) of the Constitution of the Republic of South Africa provides that Cabinet members, Deputy Ministers and members of the National Assembly:

(a) have freedom of speech in the Assembly and in its committees, subject to its rules and orders; and

(b) are not liable to civil or criminal proceedings, arrest, imprisonment or damages for-

(i) anything that they have said in, produced before or submitted to the Assembly or any of its committees; or

(ii) anything revealed as a result of anything that they have said in, produced before or submitted to the Assembly or any of its committees.

14. In my opinion section 58(1) allows the rules to limit freedom of speech, but at the same time does not allow the rules to lift the privilege vis-a-vis civil and criminal responsibility.

15. Consequently the example of article 46 of the German Basic Law and article 145 of the Constitution of the Republic of Mozambique can only be copied insofar as such speech would result in parliamentary disciplinary proceedings. Similarly, freedom of speech provided for in section 58 does not find application outside the Assembly and its committees. It is therefore not advisable to copy the wide application posed by the example of article 60 of the Constitution of Namibia.

16. The rules can provide that freedom of speech is breached or abused if the speech or action amounts to defamation, or impinges on the dignity of the National Assembly or Parliament. Such a further limitation could be placed in draft rule 320(2) as follows:

(2) The Committee established in rule 191 may make a finding that the privilege referred to in (1) above has been breached or abused only if the action complained of amounts to

(a) propaganda for war;

(b) incitement of imminent violence;

(c) advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement to cause harm

(d) defamation; or

(e) impinges on the dignity of the National Assembly or Parliament.

17.Alternatively, the draft amendment to NA rule 1 in respect of the definition of "misconduct" could be reviewed. At this point in time the draft amendment provides as follows:

"misconduct' means a breach of the standing rules of Parliament, as defined in the Act, by a member, except a breach of the Code of Conduct contained in the Schedule to the Joint Rules or conduct amounting to contempt of Parliament as defined in the Act;

18. The purpose of the definition of misconduct is to provide for the negligent refusal to obey the standing rules. Wilful failure to obey the standing rules amounts to contempt of Parliament (see section 13(c) of the Powers, Privileges and Immunities of Parliament Act, 2004).

19.1n terms of draft NA rule 194 (see above) the Powers and Privileges Committee must consider, amongst others, matters relating to misconduct. It is therefore an alternative to authorise the sanctioning of defamatory speech or action that impinges on the dignity of the National Assembly or Parliament by incorporation into the definition of "misconduct" .

20. Consequently, the definition of misconduct can be amended as follows:

"misconduct" means:

(a) a breach of the standing rules of Parliament, as defined in the Act, by a member, except a breach of the Code of Conduct contained in the Schedule to the Joint Rules or conduct amounting to contempt of Parliament as defined in the Act;

(b) defamatory speech; or

(c) conduct impinging on the dignity of the National Assembly or Parliament.

21.lt can be mentioned that conduct impinging on the dignity of the National Assembly or Parliament is essentially a generic phrase that could include abuse of travel facilities, sexual harassment, abuse of constituency offices and other forms of inappropriate conduct. It might be useful to consider a footnote to the definition of "misconduct" to provide clarity.

PALIAMENTARY LEGAL ADVISER