DA pleased by ConCourt proceedings
05 November 2015
The Democratic Alliance (DA) is very satisfied by today's proceedings before the Constitutional Court in which we made oral representations seeking confirmation of the Western Cape High Court’s ruling that section 11 of the Powers, Privileges and Immunities of Parliament and the Provincial Legislatures Act declared unconstitutional. In the alternative, the DA argued for the Court to make a ruling declaring that section 11 does not apply to Members of Parliament (MPs).
Judgement was reserved and we are satisfied that the Judges took our submissions under advisement and would return with a judgement in due course. Appreciating the constitutional flaws with this section of the Act we are optimistic that the judgement will reflect our representations.
This case relates specifically to the powers of the Speaker of the National Assembly (NA) and the Presiding Officers to direct the security services to arrest and remove any person who causes a "disturbance" within the precinct of Parliament, in terms section 11 of this Act. This power is problematic on a number of fronts. First, it has the potential to limit the freedom of speech of Members of Parliament guaranteed by section 58 of the Constitution, since a speech could, within the definition of "disturbance" involve a member being arrested and removed.
Secondly, it breaches the doctrine of the separation of powers, since it allows the Speaker (a member of Parliament) to direct the security services (part of the Executive) to arrest and remove another Member of Parliament.
Thirdly, Parliament's powers to regulate its affairs are contained in the Rules, not in a statute, and the Rules already make provision for the removal, by the Parliamentary Protection Service, of members who refuse to obey the directions of the Speaker. Finally, the Speaker has a myriad of alternative remedies to ensure order in the House that do not involve arrest and removal by the security services.
The Western Cape High Court found that section 11“inconsistent with the Constitution and invalid to the extent that it permits a member to be arrested for conduct protected by sections 58(1)(b) and 71(1)(b) of the Constitution.” Our appearance in the Constitutional Court was to seek to confirm this judgment, as is required by the Superior Courts Act.
The Western Cape High Court ruled, in May 2015, that Section 11 of the Act is therefore, section 11 in its current incarnation explicitly undermines the ability and duty of elected officials to speak truth to power.
It would be a sad day for our democracy if the Presiding Officers were allowed to have members arrested and removed from the precinct of Parliament for fulfilling their constitutional responsibility, however much the Executive may not like the message or how it is delivered.
Statement issued by James Selfe MP, Chairperson of the DA's Federal Executive, 5 November 2015
