In what is becoming a ritualised enactment of political theatre, Economic Freedom Fighters (EFF) leader Julius Malema is today set to ask President Jacob Zuma yet again when he will comply with the remedial action imposed on him by the public protector and when the president will “pay back the money”. If recent appearances by the president in the National Assembly are anything to go by, some EFF members may well at some point be instructed to leave the chamber. It is then that the new rules on the removal of MPs from the chamber will be invoked. The question is whether these rules are constitutionally compliant or not.
It is clear that President Jacob Zuma has decided not to implement the remedial action imposed on him by the public protector when she found that he and his family improperly benefited from the use of public funds for the renovations of his private house near Nkandla. The public protector ordered the president to:
“Pay a reasonable percentage of the cost of the (non-security related) measures as determined with the assistance of National Treasury, also considering the DPW (Department of Public Works) apportionment document.”
The president has refused to comply with this remedial order. (This decision is either rational and valid or irrational and invalid, but the parliamentary ad hoc committee on Nkandla cannot turn an otherwise irrational and invalid decision into a rational and valid one by exonerating the president as it does not have this power.)
It is unclear what will happen when the president is once again asked about this matter later this week in the National Assembly. However, if the president again fails to answer the question or fails to provide an answer that satisfies the members of the EFF, the presiding officer might well find him or herself in a position where the recently adopted rule 53A is invoked to justify the removal of some EFF MPs from the National Assembly.
Rule 53A of the National Assembly purports to deal with a situation where an MP refuses to leave the chamber when ordered to do so by the presiding officer in terms of rule 51. Rule 51 allows a presiding officer to order an MP to leave the chamber:
“If the presiding officer is of the opinion that a member is deliberately contravening a provision of the rules, or that a member is in contempt of or is disregarding the authority of the Chair, or that a member’s conduct is grossly disorderly.”
The presiding officer will of course first have to inform the targeted MP which rule he or she is “deliberately contravening” or on the basis of which rule he or she is “in contempt of the authority of the presiding officer”. This requires the presiding officer to have an intimate knowledge of and respect for the rules.
Unfortunately the current speaker of Parliament has demonstrated neither an intimate knowledge of the rules nor a great respect for them. Neither has she been able to be impartial or to avoid a reasonable perception of bias on her part. This lack of preparation and inability to apply the rules with even a modicum of fairness or wisdom has eroded the authority of the speaker, the legitimacy of her rulings and the dignity of Parliament as a whole.
It points to a truism that legal rules alone cannot bestow authority and legitimacy on a person who, through her own actions, is hell bent on undermining her authority and legitimacy. It also reminds us that the crisis in Parliament is not in the first instance about the rules, but about the manner in which the rules are interpreted and applied and the failure of the speaker to command the respect of MPs across political party lines.
It is not as if the existing rules of the National Assembly do not provide presiding officers with the authority and legal means to act fairly but decisively against MPs who disrupt proceedings in Parliament. (Of course, engaging in robust, raucous and even chaotic debate in Parliament does not disrupt proceedings. Making it altogether impossible to take part in such debate does.)
For example, rule 49 states that whenever a presiding officer “rises during a debate, any member then speaking or offering to speak shall resume his or her seat, and the presiding officer shall be heard without interruption”.
This means that while MPs are allowed to raise points of order during a session of the National Assembly (including during a session in which the president answers questions), they are not allowed to interrupt the presiding officer while he or she is commanding the floor. Of course, the rule presupposes that the presiding officer will not be politically biased and will not abuse his or her power by ignoring the rules of the National Assembly and the rights these rules bestow on MPs merely to protect individual politicians.
Rule 47 also prohibits any MP from interrupting another member whilst speaking, “except to call attention to a point of order or a question of privilege”. This means MPs have a right to raise a point of order while anybody other than the presiding officer is speaking (thus also while the president is answering questions) and the presiding officer must recognise the MP and hear him or her out.
However, rule 50 further allows the presiding officer to order an MP to discontinue his or her speech if the MP persists in irrelevance or the repetition of arguments, but only after having first warned the MP of this. It is unclear whether this rule applies only to MPs delivering speeches or to individuals answering questions and also to MPs raising points of order. As the rule is currently phrased, I would guess it does not apply to the raising of points of order.
Rule 63 prohibits an MP from using “offensive or unbecoming language” in Parliament. The use of swear words or other so-called vulgar words by MPs is therefore prohibited. What is not prohibited is the use of “unparliamentary language”. This means that when the presiding officer rules speech impermissible on the basis that it is unparliamentary, he or she has no legal authority to do so. Lastly, rule 66 prohibits an MP from reflecting on the competence or honour of a judge, or of other individuals serving in constitutional bodies such as the Independent Electoral Commision of South Africa, the Human Rights Commission, the public protector or the auditor-general.
The problems will arise when the presiding officer fails to follow these rules when dealing with MPs who raise points of order or otherwise raise uncomfortable questions. If the presiding officer makes a patently unlawful ruling for partisan political reasons, the question arises of whether MPs are still legally obliged to yield to his or her authority. Would an order by a presiding officer to leave the chamber be lawful even when the original ruling by him or her is patently unlawful?
In other words, if a presiding officer makes a ruling that no honest person with knowledge of and respect for the rules could have made, would this justify MPs ignoring the ruling? (It is akin to asking whether a motorist would be justified in ignoring an order by a traffic police officer to hand over a R1,000 bribe.)
Clearly, it would not normally be permissible for an MP to second guess the rulings of a presiding officer – even when reasonable people might well disagree on the interpretation or application of a rule by the presiding officer. It is less clear what the situation would be if the ruling of the presiding officer is so outrageous or so patently illegal that no reasonable and impartial person could honestly have made such a ruling.
In any event, if we assume a situation will arise where the presiding officer has lawfully ordered an MP to leave the chamber and the MP refuses, the new rule 53A will point to the proper way to deal with the situation.
Rule 53A(1) allows the presiding officer to instruct the sergeant-at-arms to remove the MP from the chamber and the precincts of Parliament if the MP refuses to leave as instructed by the presiding officer.
If the sergeant-at-arms is unable to personally effect the removal of the member, the presiding officer may call upon the Parliamentary Protection Services to assist in removing the MP from the chamber and the precincts of Parliament. Obviously, only the MP who is in breach of the rules and has specifically been named can be so removed. All the MPs of a political party cannot be removed because the presiding officer had ruled that one of its MPs was in breach of the rules.
If an MP resists attempts to be removed from the chamber either the sergeant-at-arms or the Parliamentary Protection Services “may use such force as may be reasonably necessary to overcome any resistance”. Other MPs are prohibited from physically intervening in, preventing or obstructing the removal of an MP. The presiding officer is authorised to order the removal of any MPs who intervene in the removal of another MP. Once again, this cannot apply to all the MPs of a political party where some MPs have intervened.
Rule 53A(11) further states that in the event of violence, or a reasonable prospect of violence or serious disruption ensuing in the chamber as a result of a MPs resisting removal, the presiding officer may suspend proceedings, and members of the security services may be called upon by the presiding officer to assist with the removal of members from the chamber and the precincts of Parliament “in terms of Section 4(1) of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act”.
One could argue that the new rule 53A does not fall foul of the provisions of section 58 and 71 of the Constitution which guarantee free speech in Parliament and prohibit MPs from being arrested for anything they says in Parliament. In terms of this argument, rule 53A does not target MPs directly for what they say, but for their refusal to obey the orders of the presiding officer. I would agree with this argument on the condition that this will only be correct if it is assumed that the rule would not apply when an MP refuses to obey a patently unlawful ruling by the presiding officer – one that no reasonable person with knowledge of and respect for the rules could possibly have made.
In the absence of this assumption, the presiding officer would in effect be allowed to have any MP removed from the chamber for any reason the presiding officer sees fit. Just as one would not normally argue that a legislative provision that authorises a police officer to arrest a suspect is constitutionally invalid because of the possibility that the police officer would use the section corruptly to arrest a person who refused to pay him or her a bribe, one would not be able to argue that the parliamentary rule is invalid because of the likelihood that the presiding officer will abuse his or her power and will flout the rules.
Where a presiding officer displays at least a working knowledge of the rules and apply the rules more or less fairly, no injustice will be visited on an MP who is ordered to leave the chamber. But if the presiding officer abuses his or her power and flouts the very rules he or she is mandated to uphold, the potential injustice is evident. Such a flouting of the rules will also undermine respect for the presiding officer and his or her authority and ultimately for Parliament as an institution.
It is for this reason that it remains important that the presiding officers in Parliament act fairly and in a non-partisan manner. If they do not, they themselves bring Parliament into disrepute. DM
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Pierre De Vos teaches Constitutional law at the University of Cape Town Law Faculty, where he serves as deputy dean and as the Claude Leon Foundation Chair in Constitutional Governance. He writes a regular blog, entitled 'Constitutionally Speaking', in which he attempts to mix one part righteous anger, one part cold legal reasoning and one part irreverence to help keep South Africans informed about Constitutional and other legal developments related to the democracy.
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