Parliament will appeal today’s judgment by the Western Cape High Court on the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act of 2004.
The court declared Section 11 of the Act to be invalid to the extent that it permits a member to be arrested for conduct protected by the Constitution.
Section 11 deals with “persons creating a disturbance”. It provides that any such person “may be arrested and removed from the precincts [of Parliament] on the order of the Speaker or Chairperson [of the National Council of Provinces] by a staff member or a member of the security forces”. “Disturbance” is defined as any act “which interferes with or disrupts or which is likely to interfere with or disrupt the proceedings” of Parliament.
The court concluded that what Section 11 applies to is, what the judgment termed, “robust debate and controversial speech” and “the privilege to free speech”.
Parliament’s stance was and is explicitly that this is not what Section 11 provides. The section relates to conduct which goes beyond this and puts in jeopardy Parliament’s very ability to function. In its submission to the court, Parliament stated clearly that it accepted that Section 11 does not constrain speech or actions falling within the ambit of Constitutionally protected conduct.
What the court raises in its judgment is the possibility of “arrest” of members exercising their right under the Constitution, that is, freedom of speech. This has never been a concern for the democratic Parliament and its Presiding Officers. The Presiding Officers have stood firm in protecting the rights and freedoms of all members in accordance with the Constitution. Of concern, however, has been the degeneration of debates into ugly and chaotic scenes.
We are pleased that the judgment vindicates Parliament’s authority to determine its internal arrangements and procedures. It upholds the right of the Presiding Officers to maintain order on the basis of Parliament’s rules and to discharge their authority effectively. The order by the Western Cape High Court is suspended for 12 months and is also expressly subject to confirmation by the Constitutional Court.
We look forward to further clarification of these matters, which the Constitutional Court will provide.
