At a joint sitting of the NA and the National Council of Provinces (NCOP), Thandi Modise ruled that the remarks about the Marikana massacre made by Julius Malema were “unparliamentary and do not accord with the decorum of this house.”

But the rules of Parliament do not prohibit MPs from making “unparliamentary” statements. Nor do the rules prohibit an MP from making statements that detract from the decorum of the house.

It is in any case unclear what would constitute “unparliamentary” statements and whether arbitrary rulings by a presiding officer (relying on a vague and easy to abuse concept such as “unparliamentary” speech) could legally limit the right of MPs to freedom of speech as guaranteed in the Constitution.

Section 58 and 71 of the Constitution now explicitly guarantee the freedom of speech of all Members of Parliament subject only to “its rules and orders”. The sections further state that members of the NA and the NCOP are not liable for any defamatory statements made before the NA or NCOP or any of its committees.

The question in this case – as in previous cases where presiding officers censored the speech of MPs – is whether there are valid “rules or orders” that limit the right of MPs to make statements that are critical of the governing party or of members of the government. I contend that there are none.

There are no written Parliamentary rules that prohibit MPs – either in the NA or NCOP or at a joint sitting – from making critical statements about a political party or its members, even when these statements are controversial, incendiary or arguably untrue. Neither are there any written Parliamentary rules that prohibit the making of “unparliamentary” statements. Neither are there any written rules of Parliament that regulate alleged breaches of Parliamentary privilege by MP’s.

In the absence of such written rules, presiding officers have no legal authority to discipline MPs for statements made in the house because such actions of the presiding officer would infringe on the rights to free speech of MPs as guaranteed by sections 58 and 71 of the Constitution.

Rule 14P of the Joint Rules of Parliament (mirrored by rule 63 of the NA) does prohibit the use of “offensive or unbecoming language” in Parliament. However, this section does not prohibit the content of speech but only the manner in which the speech is delivered. It covers situations like swearing, calling an MP a thief or a crook (instead of saying the member has an adventurous relationship with honesty or the truth truth) or using racist, sexist or homophobic language.

The rules of the NA also allow the Powers and Privileges Committee of Parliament to discipline an MP relating to contempt of Parliament or misconduct by a Member. However, contempt of Parliament is not defined in either the rules of Parliament or in the relevant legislation, while “misconduct” is defined as a breach of the standing rules of Parliament by a member.

But, as I have already noted, the standing rules of Parliament do not prohibit MPs from criticising the government or even from making incendiary or arguably factually dubious claims about the government or any political party in Parliament. In the absence of such rules it is unclear what legal authority a presiding officer will rely on to justify the kind of ruling made against Julius Malema last week.

Section 13 of the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act does regulate speech in Parliament by prohibiting speech that constitutes contempt of Parliament.

However, the section states that an MP is guilty of contempt of Parliament if he or she contravenes various sections of that Act relating, amongst others, to bribing a Member of Parliament and the like. The section also prohibits an MP from assaulting another MP in Parliament.

Section 13 furthermore states that an MP is guilty of contempt if he or she commits an act which, in terms of the standing rules of Parliament, constitutes contempt of Parliament or a breach or abuse of Parliamentary privilege. Section 13 does not prohibit an MP from making critical, incendiary or even false statements about a political party or the government.

The rules of Parliament only limit speech in formal ways, for example, by prohibiting an MP from reflecting on the merits of a pending court judgment or upon the competence or honour of a judge.

Despite this absence of formal written rules that regulate “unparliamentary speech” in Parliament or limit speech considered to be contemptuous of Parliament, subsequent Speakers have curiously relied on customs of the colonial Westminster Parliament to justify imposing limits on the constitutionally guaranteed freedom of speech of MPs. How foreign custom can justify limiting the rights protected in the South African Constitution remains unclear to me.

Subsequent Speakers have thus assumed that something like a “common law of Parliament” (inherited from Britain) still exists in South Africa and that section 58 and 71 of the Constitution (read with the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act) have not extinguished this colonial common law relating to the rights and privileges of MPs.

Invoking what appears to be a non-existent common law of Parliament subsequent Speakers have often ruled that statements made by MPs are “unparliamentary” (once again, I stress this phrase is not found in the rules of Parliament) if they “impute improper motives” to MPs or “cast personal reflection on their integrity as members” of Parliament or “verbally abuse them in any other way”.

Given the judgment of the Supreme Court of Appeal in Speaker of the National Assembly v De Lille I am not sure these rulings have ever had any legal validity. In that judgment Chief Justice Ismail Mahomed (writing for a full bench) affirmed that the Constitution – not Parliament – is supreme and is “the ultimate source of all lawful authority in the country”.

Referring to section 57 of the Constitution the court held that Parliament is authorised to make rules to:

maintain internal order and discipline in its proceedings by means which it considers appropriate for this purpose. This would, for example, include the power to exclude from the Assembly for temporary periods any member who is disrupting or obstructing its proceedings or impairing unreasonably its ability to conduct its business in an orderly or regular manner acceptable in a democratic society.

In discussing section 58 of the Constitution, the court rejected the argument advanced on behalf of the then Speaker that members of the NA would only enjoy the privileges enjoyed by the House of Commons of the Parliament of the United Kingdom. As Justice Mahomed pointed out:

The threat that a member of the Assembly may be suspended for something said in the assembly inhibits freedom of expression in the Assembly and must therefore adversely impact on that guarantee… What section 58(2) does is to authorise national legislation which will itself clearly and specifically articulate the ‘privileges and the immunities’ of the National Assembly which have the effect of impacting on the specific guarantee of free speech for members in the Assembly. It does not contemplate a tortuous process of discovery of some obscure rule in English Parliamentary law and custom justifying the suspension of a member of Parliament…

Given the fact that the national legislation referred to by Chief Justice Mahomed – in the form of the Powers, Privileges and Immunities of Parliament and Provincial Legislature Act – does not in any way regulate or prohibit “unparliamentary” statements made by an MP, it does not seem legally valid for a presiding officer to order an MP to withdraw “unparliamentary speech”.

It is extremely important that rules limiting the free speech of MPs in Parliament are clearly defined and set out in legislation, because in the absence of such clear rules about when speech of MPs overstep the boundaries of protected speech, the presiding officer (who is also a member of the governing party) will be tempted to censor MPs to protect the governing party or its members and to stifle free speech in our legislatures.

It is a fundamental tenet of the Rule of Law in a constitutional democracy that there should be no arbitrary limitations placed on the exercise of constitutionally protected rights. Where a discretion is given to a presiding officer of Parliament to limit the rights of MPs, the rules of Parliament or applicable legislation should spell out in detail how this discretion should be exercised.

As this is not done in either the rules or the relevant legislation and as the presiding officers seem to rely on colonial common law probably extinguished by the provisions of the 1996 Constitution, I would think that most of the rulings of presiding officers in our Parliament ordering MPs to withdraw statements may have been illegal.

Unless the censored speech clearly falls under the category of “offensive or unbecoming language” – which statements like those made by Julius Malema clearly do not – it seems to me presiding officers abuse their power when they order MPs to withdraw statements that they find offensive or problematic.

This does not mean that the rules of Parliament or the relevant legislation may not be amended to further allow for the clear regulation of speech in Parliament. But absent such amendments it seems to me that presiding officers are abusing their power by unconstitutionally limiting the free speech of MPs without the legal authority to do so.