House rules are put to the test

Members of the EFF clash with security officials after being ordered to leave the House during the State of the Nation address in February.

Members of the EFF clash with security officials after being ordered to leave the House during the State of the Nation address in February.

Published May 16, 2015

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Reason may emerge as the winner in the court finding on EFF MPs’ removal from the National Assembly, writes Craig Dodds.

 Johannesburg - What if Parliament could wind back the clock to the evening of February 12, the night of President Jacob Zuma’s State of the Nation address?

What if the police had never swarmed into the National Assembly to remove the Economic Freedom Fighters (EFF) parliamentarians and that horrible stain on the democratic Parliament was erased from history?

On the surface, that is what the Western Cape High Court has ruled should have happened, after it declared unconstitutional section 11 of the Powers, Privileges and Immunities of Parliaments and Provincial Legislatures Act of 2004.

That section granted the presiding officers the authority to instruct staff or members of the security forces to arrest and remove any “person who creates or takes part in any disturbance in the precincts” while a meeting is in session.

Since “person” in this instance could be interpreted to include an MP, the court found section 11 to be in contravention of the constitutionally guaranteed immunity of MPs from “civil or criminal proceedings, arrest or imprisonment or damages” for anything they might say in Parliament – a protection known as parliamentary privilege.

This right to “articulate the needs, views and political and economic attitudes of their constituency and without fear”, as Judge André le Grange, writing on behalf of a full bench, said in the judgment, had been consistently recognised by the courts.

Quoting a Constitutional Court judgment of 2006, he said it was “a bulwark of democracy”.

“It promotes freedom of speech and expression. It encourages democracy and full and effective deliberation. It removes the fear of repercussion for what is said.

“This advances effective democratic government.”

Along with this, the reason section 11 fell foul of the right of MPs to freedom of speech was that it relied on a definition in the act of the term “disturbance” so broad that it could be interpreted to include “robust debate and controversial speech” – “ordinarily and appropriately”, the judge said, falling within the right to free speech.

As a result, he found section 11 to be invalid “to the extent that it permits a member to be arrested for conduct that is protected”.

The order was referred to the Constitutional Court for confirmation and suspended for 12 months to allow Parliament to “remedy the defect”.

Not surprisingly, this was immediately interpreted by the DA, which brought the application, and the EFF, the objects of the police operation, as a ban by the court on the use of the security forces to arrest and remove MPs.

However, whether this was the intention of the judges is not entirely clear.

In the first place, Judge Le Grange began by saying the court had not been required to rule on whether or not the presiding officers had been justified in invoking section 11 on February 12.

Secondly, the power to have MPs arrested and removed was found to be unconstitutional only in relation to their exercise of parliamentary privilege – freedom from fear of arrest for anything they might say.

The question of whether or not the behaviour of the EFF MPs on the night would fall under parliamentary privilege was not decided.

As far as Parliament was concerned, there had never been an attempt to arrest MPs for exercising their rights.

“The issue has been about maintaining order in the House and protecting the decorum and dignity of Parliament,” it said.

University of Cape Town constitutional law Professor Pierre de Vos said part of the “remedy” to the act would have to be making clear that MPs could never be arrested for anything they said in Parliament.

However, the court had declined to rule on whether or not it would ever be acceptable for the security forces (which includes the police, army and intelligence services) to enter Parliament and arrest the MPs, despite the DA having raised the issue in its application as being problematic under the principle of the separation of powers.

It was possible the Constitutional Court would provide clarity on this question when it dealt with the judgment, De Vos said.

There were types of behaviour which would not fall under parliamentary privilege.

“If you’re going to do something that goes beyond expressing your views, for example if you bring a gun into the chamber, or if you assault another MP, or if you play loud music, or whatever – that would be unacceptable.

“You’re not expressing an opinion when you wield a gun, for example, or if you assault someone,” De Vos said.

Judge Le Grange also said it was “not difficult to imagine a situation where a member may create or cause a disturbance of such gravity that it undermines the authority or dignity of Parliament”.

In such cases it was clear the presiding officer must be in a position to “take decisive action”.

But the judge appeared to hint that this didn’t have to include the use of force.

“It is noteworthy that Parliament in its rules does not rely on force as an appropriate measure to protect its orderly proceedings,” he said.

Other options were available to presiding officers, such as ordering an MP to leave the chamber, suspending or censuring them.

They could also be ordered to leave the precinct and not return until the sanction to be imposed on them was announced.

In the event of “grave disorder”, the presiding officer could suspend proceedings for a specified period.

De Vos said although these points had been part of the logic of the judgment, they were not among the findings and it remained unclear whether force could be used to remove MPs under some circumstances.

“It will be interesting to see to what extent the Constitutional Court either embraces that logic more firmly to make it clear or rejects it,” he said.

For now, nothing is changed by the judgment until the Constitutional Court has made its pronouncement, except, possibly, the political calculus of the various role players in Parliament.

On the one hand, the legitimacy of using police to drag parliamentarians from the Chamber has been thrown into question.

At the least, that should dampen the enthusiasm that reigned in the governing ANC for this approach in the wake of the State of the Nation address fiasco.

Ironically, it might also render futile the EFF’s tactics of brinkmanship.

If there can be no disproportionate response, its defiance of the presiding officers will lose much of its power to arouse public sympathy.

At the same time, the court has affirmed the right of MPs to speak on behalf of their constituencies without fear of violence.

Just possibly, reason will emerge as the winner from Tuesday’s judgment.

Political Bureau

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