The rules that limit parliamentarians' right to introduce Bills is being challenged. Mario GR Oriani-Ambrosini reports.
The contempt with which the honourable Athol Trollip (Democratic Alliance) was treated in Parliament recently proves the point I have made over the past three years better than the 800-page record before the Constitutional Court.
During that time, I have maintained the unconstitutionality of the rules of Parliament that deprive an MP of the right to introduce legislation. I made a reasonable effort to bring about an amendment of these rules and, when I could not introduce a Bill in Parliament, I challenged their constitutionality before the high court.
I lost my application and appealed to the Constitutional Court, where the matter will be heard on August 7 this year.
Our Constitution gives every MP the unqualified right to introduce Bills. But, according to our rules, an MP has no right to introduce a Bill in Parliament unless he or she first receives the “permission” of the National Assembly.
This means that an MP seeking to introduce a Bill first needs to secure a vote in favour of his or her idea from the majority of the Assembly, which is as much political support as one needs to pass a Bill into a law.
Voting on legislation before its actual text even exists and before it has been subjected to hearings, public and expert input, amendments, multiparty debate and compromise, echoes the upside-down fantasy world of Alice in Wonderland, in which the Red Queen says: “Sentence first – verdict afterwards! … Off with her head!”
The right to introduce Bills has characterised every democratic parliament I know of, since the Athenian Boule, the Roman Senate or the first parliament based on political representation established by Emperor Frederick II in Palermo, Italy, around 1220.
In my case, the speaker, who is the nominal respondent in the application, could identify no examples in democratic countries where an MP cannot introduce legislation.
The ANC gave its assurance that the power to give or withhold “permission” to introduce a Bill would be used only to prevent the tabling of MPs’ Bills that are unconstitutional, frivolous or covered by intended government legislation.
The recent case of Trollip’s Bill and many other cases before it prove that is not true. We will never know the finer details of Trollip’s proposal, because he was not allowed to table an actual Bill. There will also be no permanent record in Parliament of what he intended to propose.
The general thrust of his proposal was to enact safeguards limiting influence-peddling by the president and his family, providing standards of transparency and accountability, similar to those applicable to Cabinet ministers, with the power of the auditor-general to investigate and adjudicate allegations of a conflict of interests.
During the debate in the Assembly there was no indication that Trollip’s Bill was suspected of being unconstitutional, frivolous or covered by intended government legislation.
The reason why the majority of Parliament denied permission for its introduction was explicitly put as the ANC not liking the idea.
The same happened to intended Bills proposed by the ANC’s own MPs, such as Vytjie Mentor, which were denied permission because their merits were “undesirable”. Many MPs have tried to introduce Bills, but none of them was granted permission. The details of their ideas have been lost, together with the scant cryptic minutes of the committee that processed them. This highlights how MPs are often mere choreography.
The elimination of the power of MPs to introduce legislation also conflicts with South African parliamentary tradition. From 1910 to 1999, MPs had the right to introduce Bills, in spite of some Bills being regarded as frivolous, such as the Bill repeatedly submitted by Alf Whitman and ridiculed because it aimed to ban smoking in public places – which proves how MPs’ Bills are often the incubators of good ideas ahead of their time.
One of the arguments given to deprive MPs the right to introduce Bills is that MPs may flood Parliament with Bills, or embarrass themselves or their party with silly Bills. But world experience proves that neither is a real concern.
In many countries, those introducing Bills are given only two minutes to present them before they are referred to committees – and often late at night when the House is deserted. Committees are under no obligation to process a Bill and many Bills are left to die a natural death when the legislature ends. Otherwise, a committee can kill a Bill with a quick deliberation by voting against its desirability.
If the Bill has the favour of the people and when it is ignored or killed, those who do so act at their own political peril and can be held accountable for their conduct at the next election – hence, the importance of MPs’ Bills for democracy.
There is no real issue about party discipline. South Africa has one of the world’s most top-heavy political systems. Because of the straight proportional representation electoral list system, MPs are chosen by party structures, which place them on the candidates’ list as they best see fit, leaving voters with no power to change the order by expressing a preference. Those voting for the ANC elected about 300 MPs listed after the name of J Zuma in a set order.
MPs are subjected to stringent party discipline, because the Constitution allows a party to terminate an MP’s membership. Most party constitutions enable a political party’s governing bodies to terminate a MP’s membership for any reason, and several court cases have sanctioned this unfettered power.
The ANC parliamentary caucus has an internal political committee that vets the positions its MPs take in internal study groups and in committees alike. It also has a centralised structure of writers dedicated to writing the speeches delivered in Parliament.
It would seem as if the unwillingness to allow MPs to think with their own minds and do the job the Constitution demands of them flows from a fear of internal democracy. Therefore, reinstating MPs’ constitutional power and duty to introduce Bills is essential to unleash our Parliament’s full potential.
Mario GR Oriani-Ambrosini is an Inkatha Freedom Party MP and the party’s spokesperson on the rules