Democratic Alliance v Speaker of the National Assembly and others CCT 86/15

1. Democratic Alliance v Speaker of the National Assembly and others CCT 86/15 2 September 2016

2. Purpose of presentation • To present the salient points raised in the Constitutional Court judgment in the matter of the Democratic Alliance v Speaker of the National Assembly and others CCT 86/15 regarding section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 (“PPIPPLA”). • Impact of the judgement on PPIPPLA.

3. Constitutional Court Order • On 18 March 2016, the Constitutional Court (“CC”) handed down a judgment which stated that the omission of the words “other than a member” after the word “person” at the beginning of section 11 of PPIPPLA is inconsistent with the Constitution. • The CC confirmed that section 11 of PPIPPLA is to now be read as follows: “ 11. A person, other than a member, who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.”

4. WC High Court Proceedings • Facts giving rise to the litigation in the High Court relate to the SONA delivered by the President on 12 February 2015 at which certain EFF members were forcibly removed in terms of section 11 of PPIPPLA after they refused to leave the House at the Speaker’s request. • At the time, S 11 of PPIPPLA read as: “ A person who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker of Chairperson, by a staff member or a member of the security services.”

5. WC High Court cont • The DA launched proceedings in the High Court seeking a declaratory that section 11 is unconstitutional. • It asked the Court to read in words that would exclude members of Parliament from the “person” liable to be arrested and removed in terms of section 11 – meaning that S 11 should be made applicable only to people who are NOT MEMBERS of Parliament. • Alternatively, that the words “arrest” and “security services” be excised from S 11 – meaning there could be removal but not arrest of members and that removal should be by persons other than security services.

6. WC High Court cont • High Court decision: • Held it was reasonable to construe “person” in S 11 to include a member of Parliament. • Also held that “disturbance” is so wide as to encompass the robust debate and controversial speech that are characteristic of parliamentary discourse – held that this wide definition detracted from the members’ parliamentary privilege of free speech. • Consequently found S 11 of PPIPPLA to be constitutionally invalid.

7. WC High Court cont • The basis for the declaration of constitutional invalidity by the High Court was that section 11 of PPIPPLA impermissibly curtails a member’s privilege of free speech in Parliament by providing for the arrest of members of Parliament who create or take part in a disturbance. • The section is invalid to the extent that it permits a member to be arrested for conduct that is protected by sections 58(1)(b) and 71(1)(b) of the Constitution– namely that members are not liable to civil or criminal proceedings, arrest, imprisonment or damages for anything said in the NA.

8. Constitutional Court • Application made by the applicant (Democratic Alliance) to the CC seeking confirmation of the order made by the Western Cape declaring section 11 of PPIPPLA to be constitutionally invalid. • In the CC, the respondents (the Speaker and others) sought leave to appeal the High Court’s declaration of constitutional invalidity. • The CC considered the following issues: 1. Does S 11 infringe the privilege of freedom of speech of members of Parliament? 2. What is the reach of “disturbance” as envisaged in S 11 and what constitutes “interference” and “disruption” in the definition of disturbance? 3. Does “person” in S 11 of PPIPPLA include a member of Parliament, and if it does, does it impinge on the parliamentary privilege of free speech guaranteed in S 58(1) and 71(1) of the Constitution? 4. To what extent and by what means may this privilege be limited?

9. Constitutional provisions • S 58 Privilege “(1)Cabinet members, Deputy Ministers and members of the National Assembly- (a) have freedom of speech in the Assembly and in its committees, subject to its rules and orders; and (b) are not liable to civil or criminal proceedings, arrest, imprisonment or damages for – (i) anything that they have said in, produced before or submitted to the Assembly or any of its committees; or (ii) anything revealed as a result of anything that they have said in, produced before or submitted to the Assembly of any of its committees.” S 71 – same content relating to the NCOP.

10. Constitutional Court cont. • Does “person” in S 11 of PPIPPLA include a member: • The CC noted that PPIPPLA does not define “person” and held that the word largely seems to include “member”. The CC referred to various sections in the Act to illustrate this point (eg. S 4(2) – which refers to action being taken when there is immediate danger to the life or safety of any person – meant to avert harm to whomever may be at risk – including a member.) • Held: the word “person” does not include “member” only in instances where that is quite plain from the context of the provision or where the provision specifically excludes member. (eg, s 25(1)- “A person, other than a member….”). • Held: from the context of the provisions the word “person” in S 11 of PPIPPLA includes a “member”.

11. Constitutional Court cont 2. Does S 11 limit parliamentary free speech and immunities of members contained in sections 58(1) and 71(1) of the Constitution: • Held: The fact that S 11 allows for the arrest of a member (possibly followed by detention and prosecution) constitutes an infringement of parliamentary free speech and directly infringes the immunities from criminal proceedings, arrest and imprisonment enjoyed by members ito s 58(1)(b) and 71(1)(b) – (Note: these immunities in 58(1)(b) and 71(1)(b) of the Constitution are absolute and not subject to rules and orders.)

12. Constitutional Court cont • Limitation of free speech: • Privilege contained in S 58(1)(a) and 71(1)(a) of the Constitution can never go so far as to give members a licence to disrupt proceedings that it would be incapacitated from conducting its business. • These sections make freedom of speech subject to the “rules and orders” envisaged in sections 57 and 70 – meaning that rules and orders may, within bounds that do not denude the privilege of its essential content, limit parliamentary free speech.

13. Constitutional Court cont • The reach of “disturbance” • The CC noted that PPIPPLA defines “disturbance” as “any act which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings of Parliament or a House or a Committee.” • CC: it cannot be all conduct that amounts to interference or disruption. To warrant removal, interference or disruption must go beyond what is the natural consequence of robust debate. • CC: Interference and disruption that may be sufficient for removal of a member must be of a nature that hamstrings and incapacitates Parliament from conducting its business. There must be no anticipation of resumption of business within a reasonable time.

14. Constitutional Court cont • Section 11 of PPIPPLA – not a rule or order of the NA • It was contended that S 11 is constitutionally invalid because, ito sections 58(1)(a) and 71(1)(a) of the Constitution, parliamentary free speech is subject to the rules of the NA and NCOP, and not an Act of Parliament. S 11 of PPIPPLA is not a rule or order of the NA or NCOP. • This raised the question as to whether an instrument other than rules and orders may be employed to limit free speech. • CC: the language of section 58(1)(a) and 71(1)(a) is plain. It makes freedom of speech in the NA and NCOP subject to RULES and ORDERS – and nothing else. Limiting this freedom by means of an Act of Parliament is at variance with the Constitution and must be constitutionally impermissible.

15. Constitutional Court cont • Also, the CC highlighted the wording of S 58(2) and 71(2) of the Constitution which provides that “other privileges and immunities…may be prescribed by national legislation. This supports the conclusion that only RULES and ORDERS may limit freedom of speech in Parliament. • CC: rule and order making process is wholly internal. To limit parliamentary free speech by means of an Act of Parliament would bring in the participation of an external agency, for eg, the Executive. The Executive (a different arm of State) would thus be taking part in a process that sections 57(1) and 70(1) have made the exclusive domain of the Legislature. • CC: the making of rules by Parliament is a more streamlined exercise than the cumbersome process of passing legislation.

16. Constitutional Court Order • CC held that S 11 of PPIPPLA is constitutionally invalid to the extent that it applies to members of Parliament. • Cure the constitutional defect by reading in the words “other than a member” after the word “person” in S 11 – to ensure that the section does not apply to members. S 11 will continue to apply to non-members.

17. ORDER OF CC • The declaration of constitutional invalidity of S 11 of PPIPPLA made by the High Court was NOT confirmed. • The omission of the words “other than a member” after the word “person” at the beginning of S 11 of PPIPPLA is declared to be inconsistent with the Constitution. • S 11 of PPIPPLA is to be read as though the words “other than a member” appear after the word “person” at the beginning of the section. • Declaration of constitutional invalidity NOT suspended. Read-in provision is effective.

18. Read-in provision • “11. A person, other than a member, who creates or takes part in any disturbance in the precincts while Parliament or a House or committee is meeting, may be arrested and removed from the precincts, on the order of the Speaker or the Chairperson or a person designated by the Speaker or Chairperson, by a staff member or a member of the security services.”

19. Impact of the judgement on PPIPPLA • The judgement emphasised the following: • Freedom of speech subject to the “rules and orders” envisaged in sections 57 and 70 – meaning that rules and orders may, within bounds that do not strip the privilege of its essential content, limit parliamentary free speech. • The immunities in 58(1)(b) and 71(1)(b) of the Constitution, ie the immunity attached to parliamentary free speech are absolute and not subject to rules and orders. This is the immunity from civil or criminal proceedings, arrest, imprisonment or damages for parliamentary free speech. • An in-depth exercise will have to be conducted to establish which of the provisions in PPIPPLA limits parliamentary free speech.

20. THANK YOU