By Saul Leal

‘I will not cause the arrest of any colleague, no matter the level of my irritation,’ said Deputy Chief Justice Dikgang Moseneke, by introducing the debate on the powers of the Speaker of the National Assembly over her colleagues, including the power of arresting them. It was at the hearing of the case Democratic Alliance v Speaker, National Assembly and Others 2016 (3) SA 487 (CC).

The Constitutional Court (CC) handed down judgment in this matter, which concerns the constitutional validity of s 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of 2004 (the Act). This provision allows the Speaker of the National Assembly or Chairperson of the National Council of Provinces to direct the ‘security services’ to arrest and remove a ‘person’ creating or taking part in a disturbance within the Parliamentary precinct.

The case’s root comes from a shameful image seen all over the world when members of an opposition party, Economic Freedom Fighters (EFF), who are also members of Parliament, were beaten, forcefully dragged and removed from the National Assembly Chamber by security forces secretly positioned inside the chamber. The festival of violence was aired by the live transmission on a national TV channel. The opposition members used the occasion of the State of the Nation to ask questions to the President of South Africa (SA), contrary to the protocol. As a result, all of the EFF members, without exception, were violently expelled from the chamber.

Another opposition party, the Democratic Alliance (DA), went to court to have the right granted of not being arrested in the case of seeming inconvenient to the Speaker.

At the hearing, the Deputy Chief Justice was intrigued by the fact that the freedom of speech is doubly constitutionally protected, being present in the Bill of Rights (s 16 of the Constitution) and in the privileges of the member of the Parliament (s 58 of the Constitution). When the right to arrest is granted to the Speaker, the court asked if it included a member. Moseneke DCJ explained: ‘Regulation must be proportional to the sought object. You have to persuade us the means are proportional.’ Moseneke DCJ also raised some points, such as, who will trace the line between disturbance and a bothering speech? When the argument of violation of the separation of powers came to surface, Moseneke DCJ said: ‘If it is talked about something peripheral, minimal, it is difficult to raise a real question of separation of powers’. He offered his apologies by using a strong word to describe his fear with regard to the risk suffered by the right into play: ‘Emasculated’.

Likewise, Van der Westhuizen J highlighted many aspects. For him, even erasing the word ‘arrest’, the presence of physical action against members of the Parliament sounded substantial. ‘Why does Parliament have police forces whereas courts do not?’ Van der Westhuizen J was interested in knowing under which ground the Parliament can arrest a member, ‘Is it a rule or a policy?’

The majority judgment by Madlanga J (Moseneke DCJ, Cameron J, Khampepe J, Van der Westhuizen J and Zondo J concurring) took the view that, if the word ‘person’ in s 11 of the Act includes members of Parliament, the section is constitutionally invalid. The judgment observed that throughout the Act ‘person’ predominantly includes members and held that when interpreted both contextually and purposefully, ‘person’ included members of Parliament. It was acknowledged that the limitation of members’ free speech may be constitutionally permissible as otherwise Parliament might be incapacitated by unruly members. But the limitation of the members’ privilege of free speech by means of an act of Parliament was constitutionally impermissible. This was so, because in terms of the Constitution, parliamentary free speech could only be subject to the rules and orders of Parliament. Thus the CC found the omission of the words ‘other than a member’ after the word ‘person’ in s 11 to be inconsistent with the Constitution. The majority judgment rectified the constitutional defect by reading-in these words (some extracts in this para were taken from the Media Summary released by the CC, as well as from the full decision available at: www.constitutionalcourt.org.za, accessed 2-9-2016).

It is important to draft some notes with regard to the case. In a democracy, parliaments must not be a club of friends. By being a picture of society, motivated by a flame of social passion, political chambers are normally noisy, even odd, frenetic, sometimes irrational and, not rarely, comparable to a big fair. This is not shameful. Contrarily, it is the price to be paid by living in a constitutional democracy. And, quite honestly, it is an affordable price.

Only in dictatorships are calm and obedient opposition members found. In a context of a free market of ideas where the strength of thought circulates freely steeling the pillars of democracy, 400 people speaking loudly – not always behaving as very polite ladies and gentlemen – is a symptom that democracy is working. This includes interrupting the Speaker or trying to catch the attention of the President via childish attitudes. Democracy has its costs.

At the CC, the core provision at stake was the following: ‘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 or Chairperson, by a staff member or a member of the security service’ (s 11 of the Act).

In this regard, a Brazilian example might be useful. Joaquim Roriz was a folk governor of the Federal District, where the capital of the country, Brasília, is situated. Marked by a populist discourse, as well as an incredible popular appeal, Mr Roriz governed the province four times. During his last term, he had an angry opposition party protesting in front of his window every day, he decided that he had had enough. Mr Roriz enacted a decree establishing that the constitutional right to assembly, demonstration and picketing in front of the government headquarter was assured. Nevertheless, included after the right: ‘… provided that [it be] silent’.

How would it be possible to protest without being noisy? Perhaps the governor was trying to implement a more gentle form of manifestation. The case, by being so surreal, ended up at the Brazilian Supreme Court. The court struck down the decree ((ADI 1.969-4/DF, 28-6-2007) (Lewandowski J)).

In SA, the DA case also exposes a surreal situation. How to teach members of the Parliament the right etiquette before the President?

In this regard, it is important to elicit three questions of law and three questions of principle. As a matter of law, the Constitution does not empower the Speaker neither with an absolute power nor with sovereignty. The Speaker has no deliberate vote (s 53(2)(b) of the Constitution) and all questions before the Assembly are decided by a majority of the votes cast (s 53(1)(c) of the Constitution). These are examples of the principles of collegiality that must guide all decisions taken by the Parliament.

Secondly, the Constitution pays special attention to the minority parties. In s 57(2)(b) the rules and orders of the National Assembly must provide for the participation in the proceedings of the Assembly and its committees of minority parties represented in the Assembly, in a manner consistent with democracy. The Constitution also pays attention to the mission of the opposition party. Section 57(2)(d) proclaims: ‘The recognition of the leader of the largest opposition party in the Assembly as the Leader of the Opposition.’

From a comparative perspective, Judge José Celso de Mello Filho, at the Brazilian Supreme Court, affirmed that there is a true constitutional statute of parliamentary minorities, ‘whose privileges must be preserved by the Judiciary Power, who is responsible for proclaiming the elevated meaning that assumes, to the democratic regime, the essentiality of the judicial protection to free the right of opposition, assessed from a perspective of the republican practices of the parliamentary institutions’ (MS 26.441, 25-4-2007). For Celso de Mello Filho  J, ‘the offense to the right to parliamentary minorities constitutes, in essence, disrespect to the right of the people that also are represented by the minority groups that act in the Houses of the National Congress’.

Finally, it is of paramount importance to stress the different purposes revealed by ss 58, 59, 71 and 72 of the Constitution.

While ss 58 and 71 are designated to the members of the Parliament, ss 59 and 72 are clearly applicable to the public in general. The first ones speak on privilege. The second ones refer to public access to and involvement in National Council. Where the first ones are provisions to expand rights, the second ones are designed to compress rights. Sections 58 and 71 state that the members of the National Assembly are not liable to civil or criminal proceedings, arrest, imprisonment or damage. Sections 59 and 72 stipulate with regard to the public ‘the refusal of entry to, or the removal of, any person’. They work complementarily, but are entirely designated for different purposes.

The public, in favour of the better functioning of Parliament, can be prevented from exercising some of these rights. Instead, the members, also in favour of the better functioning of the Parliament, must be free to use all the available privileges precisely because in doing so, they are improving the dignity of Parliament.

There are three questions of principle. Firstly, the Speaker and the Chairperson will be members of the ruling party. On the other hand, the alleged inconvenient and non-cooperative noisy members will be opposition groups. Just to illustrate, from 1924 to 1994, only one party occupied the place of Speaker: The National Party. From 1994 until now, only the ANC has occupied the place of the Speaker. It is always the ruling party.

So, taking an in-depth perception, the right to arrest members of the Parliament in case of disturbance is actually the right to intimidate the opposition groups. If they cannot oppose the government unreservedly in their own house – Parliament – they will look for another arena, making an inevitable migration occur to the judiciary field, where they can, via their lawyers, make an opposition free of being muzzled by handcuffs and violence.

The second point relates to tolerance. Parliament is full of imperfections, but, thus far, is the best model created. Noisy, controverted, sometimes incongruent, even apparently ridiculous, it is, by conception, the people’s home and, by being like that, need a multitude of rights, privileges and immunities.

The Parliament in SA already has a powerful arsenal to punish those whose behavior is incompatible with the dignity of the House. A member may be suspended, censured or required to leave the precinct of Parliament and in the event of grave disorder, the meeting may be adjourned or suspended for a period of time. There are means to preserve the House.

Parliaments are the temple of democracy. In their floor ought to prevail liberty, instead of oppression. Freedom of voice must flourish, even to what sounds inconvenient. Instead of having disguised security forces prizing violence, it must be a place to give examples of peaceful public dialogue. The figure of Speaker ought to unite, by his or her genuine leadership, those whose presence at the National Assembly derives directly from the people. Inspired by this faith the CC was able to identify some elements which illuminated this landmark.

Saul Leal is a Vice-Chancellor Postdoctoral Fellow at the Institute for International and Comparative Law in Africa (ICLA) and President of the Sub-Committee on Foreign Relations with South Africa of the Brazilian Bar Association.

This article was first published in De Rebus in 2016 (Oct) DR 51.