Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
8 February 2016

SONA: the rules that should guide the Speaker

When President Jacob Zuma delivers his State of the Nation (SONA) address on Thursday night to a joint sitting of Parliament, all eyes will be on the MPs of the Economic Freedom Fighters (EFF) and on the presiding officer (Speaker Baleka Mbete). Will EFF MPs disrupt proceedings? Will the Speaker follow the rules of Parliament or will she make up her own rules as she has done in the past? Below I provide a short explanation of the applicable rules in an attempt to inform readers about what ought to happen at SONA so that they can compare this with what actually happens on the night.

A good presiding officer of Parliament has two indispensable weapons at his or her disposal in dealing with disruptive MPs. First, the good presiding officer will have an encyclopaedic knowledge of the rules of Parliament and will be able to challenge MPs by invoking the relevant rule, preferably by mentioning the number of the rule and saying why it is applicable. Second, he or she will have earned the respect of a cross-section of MPs due to his or her fair and impartial application of the rules.

Unfortunately, the current Speaker has not previously displayed these skills. This is one of the reasons why earlier parliamentary sessions addressed by President Jacob Zuma descended into unseemly chaos.

In order to address the problem, Parliament late last year adopted a new rule applicable at joint sittings of Parliament authorising the presiding officer (I will assume throughout this article that the presiding officer will be the Speaker) to have MPs removed from the Chamber when they refuse to do so, after they were ordered to leave. It is unclear whether a change in the rules – rather than a change of Speaker – will prevent a recurrence of the chaos.

In terms of section 14G of the joint rules, the Speaker is not allowed to instruct an MP to leave the Chamber or (if he or she refuses to do so) to order his or her removal unless the Speaker is of the opinion that:

  • a member is deliberately contravening a provision of the rules; or
  • that a member is in contempt of or is disregarding the authority of the Speaker; or
  • that a member’s conduct is grossly disorderly.

The opinion of the Speaker must be genuinely formed and must be based on the facts and on a relatively accurate interpretation of the rules. If the Speaker interprets the rules in an arbitrary or capricious manner or clearly acts in bad faith, her actions would be irrational and hence unlawful. For example if the Speaker orders an MP to leave the Chamber for “deliberately” breaching a non-existent rule which she had invented on the spot, she would not be acting lawfully.

It cannot be stressed enough that in order to fulfil her task as Speaker adequately the Speaker should have a solid knowledge of the rules. When she instructs an MP to sit down or to refrain from raising any issue in the Chamber, she should, ideally, name the specific rule which authorises her to issue the instruction.

Joint rule 13 states that an MP is not allowed to deliver a speech at a joint sitting unless invited to do so by the Speaker; or unless he or she had obtained the permission of the Speaker and the Chairperson of the NCOP to do so before the meeting. This means that at the SONA address, only the President is allowed to deliver a speech. (The rule states that a MP “may not speak” at joint sitting, which is ambiguous, but if read with joint rule 14C, discussed below it must mean that an MP may not deliver a speech – otherwise the rules would be irrational and in direct conflict with one another.)

However, as the rules currently stand, this does not mean that MPs are not allowed to interrupt the speech delivered by the President. Joint rule 14C explicitly state that:

No member shall interrupt another member whilst speaking, except to call attention to a point of order or a question of privilege.

An MP may therefore raise a point of order if he or she believes that one or more of the rules of the Chamber have been broken. An MP may not raise a point of order and then challenge the content of the President’s speech or otherwise pontificate in a manner that does not directly raise a point that one or more of the rules of the Chamber have been breached.

For example, an MP may raise a point of order, alleging that the President had referred to an MP by his or her first name (a contravention of joint rule 14O). An MP may also raise a point of order, arguing that the President or another MP had used “offensive or unbecoming language” (prohibited by joint rule 14P). An MP may also raise a point of order by complaining that other MPs are conversing aloud (a contravention of joint rule 14B).

In the SONA debate MPs from the President’s own party may well raise points of order relating to a possible breach of joint rule 14Q, which prohibits a member from reflecting on the merits of any matter on which a judicial decision is pending. (This is the so called sub judice rule which in effect no longer applies outside parliament.)

Joint rule 14J also prohibits anyone from reflecting “upon the competence or honour of a judge of a superior court or of the holder of any other office (other than a member of the Government) whose removal from such office is dependent upon a decision of either House”. For instance, if the President or another MP questions the integrity of the Public Protector, the Speaker would have to rule that out of order if requested to do so by an MP raising a point of order.

Nothing in the rules prohibit an MP from reflecting on the competence or honour of the President, but at SONA this could only be done if it is done while raising a point of order or a question of privilege. It would require extraordinary skill and street-smart to do both. Where an MP merely reflects on the competence or honour of the President without raising a point of order or a question of privilege, the Speaker would be entitled to order that MP to desist and the MP is obliged to obey the Speaker. A failure to obey such a legitimate order from the Speaker may well lead to expulsion from the Chamber.

Strangely, the joint rules do not prevent the person delivering a speech from making patently false statements in parliament. If President Zuma were therefore to state as fact that he had complied with the remedial action imposed by the Public Protector and an MP raised on a point of order to challenge this, the Speaker will have every right to reject the point of order as the rules do not prohibit the President from making an arguably false statement.

If an MP raises a point of order, the Speaker must then make a ruling on whether the rule was indeed broken or not. The Speaker cannot ignore the point of order raised by the MP and must deal with it forthwith. Normally, an MP cannot invoke this rule to ask a question or make a speech as he or she would then be abusing the rule.

An MP may also raise a question of privilege. If we are to follow the practice of the British Parliament – as presiding officers have done in South Africa since 1994 (despite the colonial character of these practices) – what constitutes questions of privilege would be interpreted narrowly. Usually an MP raises a question of privilege when he or she makes a request regarding the privileges of MPs or of Parliament as a whole. Questions of privilege are most often raised when the member in question feels that something is materially affecting his or her ability to discharge his or her duties in parliament.

Normally a point of privilege is raised about something that directly affects an MP: she cannot hear the speaker whose microphone is not working; the MPs’ simultaneous translation device is faulty; unidentified men in white shirts had entered the Chamber unbidden and are intimidating MPs.

The Speaker has the right to be heard without interruption when she speaks (a right guaranteed by joint Rule 14E). However, the rules do not authorise the Speaker to stop MPs from raising points of order or points of privilege.

She has a right to be listened to without interruption as she rules on each new point of order or interruption and she also has the right to inform an MP that he or she is not raising either a point of order or a question of privilege and to order the MP to sit down. (She is not authorised to order an MP to sit down before she has even heard what point of order or privilege he is going to raise.)

When a large number of MPs are well-prepared and disciplined, having thought carefully about how to raise points that could at least arguably be viewed as points of order or questions of privilege, and when those MPs are prepared to risk the possible negative reaction from the general public who might frown upon such tactics, they can stay more or less within the joint rules while raising one purported point of order or privilege after the other, forcing the Speaker to deal with each one in turn.

As the Speaker does not have the legal authority to stop MPs from raising points of order and privilege, this could go on until the MPs have exhausted their prepared points. Consequently, if MPs plan their actions carefully, they can launch an effective filibuster which can prevent the President from delivering his State of the Nation speech for several minutes or even several hours.

Of course, MPs who use such tactics take a huge political risk as their action could garner sympathy for the President and can turn members of the public against them if those members of the public do not approve of the disruptive behaviour of the MPs.

As pointed out above, it is not against the rules of parliament to raise points of order or privilege and the Speaker cannot order an MP to leave the Chamber for doing so. However, if one or more MP become “grossly disorderly” or refuse to allow the Speaker to make a ruling on each point of order or privilege as they are raised, or continue talking once the Speaker has indicated that the MP is in fact not raising a point of order or privilege at all, the Speaker is allowed to order the MP or MPs to leave the Chamber.

If the MP so identified refuses to leave, the Speaker must invoke the new joint Rule 14GA to restore order. This rule requires the Speaker first to instruct the “Serjeant-at-Arms or the Usher to remove the member from the Chamber and the precincts of Parliament”.

If the Serjeant-at-Arms or the Usher is unable in person to remove the MP, the Speaker may (but is not required to) call upon the Parliamentary Protection Services to assist in removing the member from the Chamber and the precincts of Parliament. No MP may, in any manner whatsoever, physically intervene in, prevent, obstruct or hinder the removal of another MP from the Chamber in terms of the Rules.

I would think that a parliament in which well-informed, quick-witted, MPs constantly and cleverly trying to outsmart a Speaker who has an encyclopaedic knowledge of the rules and a knack for making fair and impartial rulings and for creating the perception of fairness and impartiality, the contest that will arise could be fascinating. It would also seldom lead to the violent removal of an MP by “Parliamentary Protection Services”.

However, judging from recent experiences, the South African parliament is not such a place. This means we might all again be subjected to the undignified and chaotic scenes that characterised some of the previous parliamentary sessions which President Zuma graced with his presence.

2015 Constitutionally Speaking | website created by Idea in a Forest