FRIDAY’s Constitutional Court judgment on police in Parliament was a strong affirmation of free speech, but Parliament’s security staff will, for now, still be able to remove disrupting members from the parliamentary precinct.
What the judgment does do, however, is set parameters, which could help Parliament when it adopts new rules — to test whether they are constitutionally compliant when dealing with disruptions.
The judgment declared unconstitutional a section of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act. The section allowed parliamentary staff and "security services" — police, the army and intelligence — to remove MPs.
But, there are already interim rules in place. These allow the serjeant-at-arms or the parliamentary protection services to remove disrupting members.
The interim rules were adopted following the outcry when police were called in to strong-arm Economic Freedom Fighters MPs from the chamber at last year’s state of the nation address and after a few more similar incidents.
In his majority judgment, Justice Mbuyiseli Madlanga specifically declines to decide whether these interim rules are constitutionally valid, saying this was "a matter for another day".
Justice Madlanga says rules and orders may limit parliamentary free speech. But — in order to be constitutionally compliant — they must do so "within bounds that do not denude the privilege of its essential content".
The "privilege" of free speech in the National Assembly is contained in section 58 of the Constitution. It says MPs "have freedom of speech in the Assembly … subject to its rules and orders".
Section 58 also says MPs cannot be arrested, imprisoned, prosecuted or sued for anything they say in the assembly. Justice Madlanga goes to town on why this privilege is crucial for the deliberative nature of the parliamentary process and constitutional democracy.
Without free speech in Parliament, "the very notion of constitutional democracy is lost", he says.
Justice Madlanga says citizens can be assured of the best laws only if there is freedom of speech in Parliament and also that free speech enables Parliament to do one of its most important jobs: hold the executive to account.
However, the privilege can never go so far that members would have licence to disrupt Parliament to the extent that it "may be hamstrung and incapacitated from conducting its business. This would detract from the very raison d’etre of Parliament," he says.
Justice Madlanga gives three important markers for what a constitutional procedure for removing members could look like.
The first is that any regulation of disturbances must be governed by way of rules and orders, not through legislation. This entirely internal process insulates it from any executive involvement.
Secondly, in explaining why the legislation that allowed the police into the chamber infringed section 58, Justice Madlanga says it created a criminal offence.
"The spectre of not only an arrest, but everything that may follow it, is real.
"That may have a chilling effect on robust debate," he says.
Thus any action to remove a member would likely only be constitutional if the most it could achieve is to get a member out the chamber, so the debate can continue.
Finally, Justice Madlanga deals with what kind of disturbance would warrant removal.
He says it would be unconstitutional for the speaker to be able to order someone to be removed if he or she is only annoying her or testing her patience.
"To warrant removal ... disruption must go beyond what is the natural consequence of robust debate," he says.
It must be "of a nature that hamstrings and incapacitates Parliament from conducting its business".
EFF members clash with Parliament Protection Services during the state of the nation address in February. Picture: THE TIMES/ESA ALEXANDER
FRIDAY’s Constitutional Court judgment on police in Parliament was a strong affirmation of free speech, but Parliament’s security staff will, for now, still be able to remove disrupting members from the parliamentary precinct.
What the judgment does do, however, is set parameters, which could help Parliament when it adopts new rules — to test whether they are constitutionally compliant when dealing with disruptions.
The judgment declared unconstitutional a section of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act. The section allowed parliamentary staff and "security services" — police, the army and intelligence — to remove MPs.
But, there are already interim rules in place. These allow the serjeant-at-arms or the parliamentary protection services to remove disrupting members.
The interim rules were adopted following the outcry when police were called in to strong-arm Economic Freedom Fighters MPs from the chamber at last year’s state of the nation address and after a few more similar incidents.
In his majority judgment, Justice Mbuyiseli Madlanga specifically declines to decide whether these interim rules are constitutionally valid, saying this was "a matter for another day".
Justice Madlanga says rules and orders may limit parliamentary free speech. But — in order to be constitutionally compliant — they must do so "within bounds that do not denude the privilege of its essential content".
The "privilege" of free speech in the National Assembly is contained in section 58 of the Constitution. It says MPs "have freedom of speech in the Assembly … subject to its rules and orders".
Section 58 also says MPs cannot be arrested, imprisoned, prosecuted or sued for anything they say in the assembly. Justice Madlanga goes to town on why this privilege is crucial for the deliberative nature of the parliamentary process and constitutional democracy.
Without free speech in Parliament, "the very notion of constitutional democracy is lost", he says.
Justice Madlanga says citizens can be assured of the best laws only if there is freedom of speech in Parliament and also that free speech enables Parliament to do one of its most important jobs: hold the executive to account.
However, the privilege can never go so far that members would have licence to disrupt Parliament to the extent that it "may be hamstrung and incapacitated from conducting its business. This would detract from the very raison d’etre of Parliament," he says.
Justice Madlanga gives three important markers for what a constitutional procedure for removing members could look like.
The first is that any regulation of disturbances must be governed by way of rules and orders, not through legislation. This entirely internal process insulates it from any executive involvement.
Secondly, in explaining why the legislation that allowed the police into the chamber infringed section 58, Justice Madlanga says it created a criminal offence.
"The spectre of not only an arrest, but everything that may follow it, is real.
"That may have a chilling effect on robust debate," he says.
Thus any action to remove a member would likely only be constitutional if the most it could achieve is to get a member out the chamber, so the debate can continue.
Finally, Justice Madlanga deals with what kind of disturbance would warrant removal.
He says it would be unconstitutional for the speaker to be able to order someone to be removed if he or she is only annoying her or testing her patience.
"To warrant removal ... disruption must go beyond what is the natural consequence of robust debate," he says.
It must be "of a nature that hamstrings and incapacitates Parliament from conducting its business".
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