27 December 2012

South Africa: Parliament As Custodian of Constitutional Democracy Acts Within the Constitution, the Law, Rules and Precedents

press release

Before becoming the Speaker of the National Assembly (NA), Mr Max Sisulu, as part of the Third Parliament's Independent Panel Assessment of Parliament, promoted the idea that Parliament's Rules needed to be modernised and updated to better reflect the provisions of our Constitution.

This year in his Budget Vote Address, the Speaker re-iterated this call and reminded Members of the NA that:

"Since the adoption of the Rules, Parliament has continued to develop and refine its structures, procedures and proceedings to ensure that they allow the legislature to discharge its responsibilities effectively. It has become increasingly evident that a comprehensive review of the Rules is required to ensure that they do not hinder but rather help us in discharging our mandate and are also in line with our Constitution".

The Speaker called for a review of the Rules to ensure that these remain relevant and in line with the demands of our democratic Parliament.

This process has begun in earnest and a task team comprising Members of Parliament (MPs), together with former MPs from a range of political parties, are hard at work. Their task is to ensure that our Rules and practices are aligned to the Constitution and at the same time allow the NA to perform its functions without any hindrance.

Historically, the role of the Speaker, as a representative of the House, is always to emphasise impartiality. Therefore, the Speaker, when giving rulings on procedures or maintaining order in the House, is bound by the Rules, standing orders, conventions, practices and precedent.

This year the NA witnessed an unprecedented number of court challenges from its Members.

When Mr Mario Ambrosini challenged the constitutionality of rules regarding the introduction of private members bills, which have been in force since at least 1994, he did not challenge the conduct of the Presiding Officers. Mr Ambrosini challenged the constitutionality of the Rules.

Parliament had proceeded on the basis that these rules were in accordance with the Constitution. Given that the lower courts ruled in favour of Parliament and even the Constitutional Court was divided when deciding the matter, it was clear that there were at least two interpretations. Parliament thus welcomed the clarity that the Constitutional Court provided as it has always endeavoured to act within the bounds of the Constitution.

To accuse a Speaker or Presiding Officer of acting in a partisan manner or of creating a parliamentary crisis by following the Rules that they are duty-bound to follow, is indeed a very serious allegation.

On 12 December 2012, a full bench of the Western Cape High Court unanimously dismissed an application against the Speaker and Deputy Speaker of the NA and found that they had acted within the Rules and the Constitution.

This was the third such dismissal of an application against a Presiding Officer of the NA in less than three weeks.

The first such dismissal took place on 22 November 2012 in Mazibuko versus the Speaker where the applicant asked the Western Cape High Court to order the Speaker to perform a function that he was not permitted to perform in terms of the Rules.

The Speaker maintained that he did not have the authority to take a decision outside the rules. Justice Dennis Davis agreed with the Speaker and stated that where the Rules considered a matter and gave direction, the Speaker had no authority to act on his own accord contrary to this.

Justice Davis also issued a stern warning that such unfounded applications by politicians would lead to the politicisation of the judiciary.

According to Justice Davis: "Drawing the judiciary into every and all political disputes, as if there is no other forum to deal with a political impasse relating to policy...into issues which are beyond their competence or intended jurisdiction or which have been deliberately and carefully constructed legally so as to ensure that the other arms of the state deal with these matters, can only result in jeopardy for our constitutional democracy... I am not prepared to create a juristocracy."

Despite this dire warning, the very next day an application was made to the Constitutional Court to seek an order to compel the Speaker to recall the NA and again to schedule a debate which he had no authority to schedule. On 30 November 2012, the Constitutional Court also dismissed this application.

Thereafter, on 12 December 2012 a full bench of the Western Cape High Court again dismissed another application against the Speaker and Deputy Speaker, which alleged that they had acted unconstitutionally.

Justice Fourie reiterated the warning of Justice Davis regarding applications to the courts by MPs. He also noted that the trite principle is that the Speaker, though affiliated to a political party, is required to perform the functions of that office fairly and impartially in the interests of the NA and Parliament. When presiding over sittings of the NA the Speaker has to maintain order and apply and interpret rules, conventions, practices and precedents". The court, in the circumstances, found that the Presiding Officers had followed accepted rules and precedents to maintain order and had not acted unconstitutionally.

To require the Speaker to act outside the scope of the Rules or to make an allegation that the Speaker is hiding behind precedent or the Rules is to undermine our Constitution and the rule of law itself.

In the landmark Fedsure Case, the late Arthur Chaskalson held that: "It seems central to the conception of our constitutional order that the legislature and executive in every sphere are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law."

Section 57 of the Constitution empowers the NA to determine its internal arrangements, proceedings and procedures and to this extent it is empowered to make rules and orders concerning its business. As we have a rule-based system, MPs should acquaint themselves with the parliamentary rules and practices.

The Speaker has appealed to MPs to use the review of the rules process to make a meaningful contribution and improve our rules rather than institute unfounded applications to the courts. There are processes within Parliament to address any grievances or oversights in our rules. MPs are encouraged to take advantage of this process of the review of the Rules to ensure that the Rules facilitate the discharge of their mandate rather than hinder them.

Issued by: Parliament of South Africa

27 Dec 2012

Issued by: Parliament of South Africa

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