Juju's indication that the EFF will challenge a ruling raises important questions about the freedom on speech, writes Firoz Cachalia.
Recently Julius Malema, newly elected to Parliament, was ordered to withdraw a statement he made in his maiden address criticising the government. When he refused to do so, the Deputy Speaker ordered him to leave the House.
He subsequently indicated that his party intended to challenge the constitutionality of the ruling.
This event raises some important questions about the ambit of freedom of speech in Parliament, the role of the Speaker, the nature of Parliament as a representative body, its rules and procedures and the relationship between Parliament and the judiciary contemplated by our constitution.
After the adoption of a new constitution which includes the Bill of Rights, “everyone” enjoys freedom of speech in our country.
The government may only restrict this fundamental freedom for compelling reasons subject to judicial supervision.
There are many reasons why we value and should jealously guard this constitutionally protected right. It recognises that we are all moral agents with a capacity to think, to form opinions and to articulate them.
But this freedom also provides the foundation for self-government, since one of its purposes is to protect political disagreement and dissent, the essence of democratic politics. This is the reason why political speech enjoys enhanced protection under the law.
This freedom of speech that we all enjoy should not be conflated with the freedom of speech that MPs have in the General Assembly by virtue of section 58 of the constitution. This freedom is even wider than the rights which we all have, whether or not we are MPs, by virtue of the Bill of Rights.
The “right” of MPs is more properly referred to as a “parliamentary privilege”, since it creates an immunity that only members of Parliament enjoy from civil liability for anything said in the House. Members, therefore, cannot be held legally accountable for the harm that may be caused by defamatory statements made under the protection of parliamentary privilege.
It is important, as the constitution recognises, that members of Parliament and legislatures should enjoy this immunity, since those who represent the people should be free to speak their minds without fear that they will suffer legal consequences for anything said while carrying out their parliamentary duties in the General Assembly.
The freedom of speech that members enjoy in Parliament improves government accountability, narrows the gap between the nation’s leaders and citizens and reduces the risk of decisions made in error, without due consideration of the interests and needs of the people.
And its ambit is appropriately wide. It includes, to invoke a phrase used by Justice Oliver Wendell Holmes jr, a venerable American judge from the last century, expressions “we loath and believe to be fraught with death”.
Malema, therefore, has the freedom in Parliament to make a statement holding the government responsible for the deaths of mineworkers at Marikana.
MPs may make statements in Parliament that may be considered outrageous, provocative or factually incorrect, but which are nevertheless protected under section 58 of the constitution.
The people of the country have to be trusted to assess the merits of statements made in Parliament by their public representatives.
It seems to me to be plain, therefore, that the ruling that Malema had to withdraw his statement was not correct.
It should perhaps be recalled that the freedom of speech in Parliament, which has been constitutionalised under our constitution, has its origins in a claim of privilege made by the Speaker of the House of Commons in 16th century England on behalf of its members to criticise the king’s government.
It is the duty of the Speaker of Parliament to uphold and protect the right of all members of Parliament to speak their minds. The freedom that members enjoy, however, is not absolute.
Precisely because it is so broad, and because of the immunity it creates, it is capable of abuse and therefore subject to the disciplinary jurisdiction of the House and regulation by its rules and orders.
This is the context in which the importance of the rules and procedures of Parliament should be understood.
Political conversation in Parliament is not analogous to informal conversation among friends.
The formal rules and procedures provide the necessary conditions for talk in parliamentary bodies which are made up of a large number of members who are also members of political parties representing constituencies with different interests and ideological perspectives.
As one of the more acute observers on these matters observed: “These formal characteristics are related inherently to the fact that it is the task of modern legislatures to gather together large numbers of people who are not necessarily on casual speaking terms with one another and who participate in legislative deliberations not as individual conversationalists, but as representatives.”
It’s important to recognise what kind of political achievement it is that such bodies, representing large and complex societies, deliberate at all, that they can take concerted action and make decisions in the form of legislation, compliance with which is at least legally and probably morally obligatory on us.
I do hope that Malema and his party, which has brought a valuable energy and perspective to Parliament, will come in time to recognise that these rules and procedures are necessary for democratic conversation to occur, and indeed that his own freedom to speak and to articulate the concerns and perspectives of his constituents depends on understanding and respecting these rules and procedures of the Assembly in which he has earned the right of membership and speech.
I can recall that when many of us arrived in Parliament and the provincial legislatures for the first time after 1994, we also experienced the rules as disempowering, having come from a tradition of mass politics. But we came to recognise in time that being an activist and being a parliamentarian are not necessarily in conflict.
I hope he will come to appreciate the truth in the following observation recently made by Michael Ignanieff, who served as an MP in the Canadian House of Commons: “No democracy has any health unless debutant MPs think of the chamber with awe and respect, and unless young citizens dream of taking their place there one day.”
Parliamentary speech, by which I mean the particular form of conversation that takes place in Parliament, is protected by the constitution for many good reasons.
And there are also many good reasons why such speech is subject to regulation and limitation in the form of “rules and orders”.
The question I want to address is what powers the Speaker has to regulate conversation and proceedings of the House by declaring the use of particular words and phrases “unparliamentary”.
I’ve seen some commentary which concludes that the Speaker has no such powers unless expressly provided for by the “rules and orders” of the House adopted by a majority of its members in terms of section 57 of the constitution.
This interpretation has the serious consequence that the exercise of such powers by successive Speakers of Parliament since 1994, which has never been called into question, is rendered invalid and illegal.
This interpretation of section 57 is open to some doubt since the phrase “rules and orders” could and should be interpreted to include the Speaker’s rulings while presiding in the House.
In interpreting the language of the constitution, the Constitutional Court has long eschewed a narrow literalism.
In a constitutional democracy such as ours, as distinct from a system based on parliamentary sovereignty, the Speaker’s powers are derived directly from the constitution, having regard to specific constitutional provisions like sections 57 and 52 as well as the constitution as a whole.
Section 57, which establishes the member’s immunity from liability for exercising the freedom of parliamentary speech, also establishes the Speaker’s authority to ensure discipline and maintain decorum by regulating abuses of the immunity.
The Speaker balances these competing considerations (right versus potential abuse of immunity) not by regulating content – since this would be inconsistent with the purpose of the right, which is to encourage members to articulate their disagreements – but by ruling personal attacks and unfair imputations on the reputation of members and non-members, if not substantiated, out of order, to maintain decorum, and thereby to facilitate conversation in an adversarial setting. In the Malema matter, the Speaker overreached because her objection, possibly based on the advice she received from the table staff, was her disagreement with Malema’s point of view.
The authority of the Speaker, acting impartially and independently, and with due regard to the provisions of the constitution, to maintain order in the house is well established in all parliamentary jurisdictions and should not be called into question.
When the Speaker’s role as presiding officer of Parliament is combined with the second role as officer responsible for the administration of Parliament, in which capacity the Speaker has the constitutional duty to protect the independence and autonomy of the legislature from the other branches, it becomes clear that, the authority of the Speaker is an incident of the separation of powers, which the Constitutional Court has ruled is an implied principle of our constitutional democracy.
This is the case with respect to the relationship between the legislature and the executive.
With respect to the relationship between the legislature and the courts, the position is more uncertain.
This is so because the constitutional court has adopted more open- ended interpretive practices and a non-traditional, flexible conception of the separation of powers.
While there is much to recommend its approach, with which I am in broad sympathy, this does lead to uncertainty, increase the risk of judicial overreaching, and of involvement in political controversy. I have reservations, for instance, about the recent Mazibuko judgment, where the court found on reasoning that I do not think persuasive that there was a lacunae (an empty space in law) in the rules with respect to the scheduling of motions of confidence in the president.
In every jurisdiction I’m aware of, such matters are resolved through political contestation, not judicial intervention.
The Constitutional Court has not yet ruled that the Speaker’s rulings are subject to judicial review, although this is not inconceivable in our jurisdiction. This would mean that the rulings of the Speaker, which are made on a routine basis in every sitting, would then never be final. I cannot see how this would not disrupt the functioning of Parliament.
To avoid the courts becoming involved willy-nilly in matters of political controversy and to protect the autonomy of Parliament, as well as the independence of the judiciary, the responsible office- bearers should take proactive steps to ensure that they exercise their functions within the parameters of the constitution.
*Cachalia is former Speaker of the Gauteng legislature and MEC. She is adjunct professor in the School of Law,Wits University.
** The views expressed here are not necessarily those of Independent Newspapers.
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