Inkatha Freedom Party MP Mario Oriani-Ambrosini took on the might of the Parliament in the Western Cape High Court on Wednesday in a bid to change the rules of the National Assembly — which he calls “unconstitutional” — and out of kilter with other multi-party democracies.
“The matter touches on the heart of democracy in general and multi-party democracy in particular,” argued Ambrosini’s lawyers in court papers filed against Speaker of Parliament Max Sisulu.
Central to the case is the system by which MPs may introduce new legislation into the National Assembly. While Section 73 of the Constitution allows MPs to introduce Bills in Parliament, along with Cabinet members and deputy ministers, the rules of the National Assembly, according to Ambrosini, hamper this constitutional provision.
The process by which private members’ Bills (as legislation introduced by MPs is known) are put forward, has been called the place where “good ideas go to die” by opposition MPs.
National Assembly rules require an MP wanting to introduce new laws or change old ones to approach the Committee on Private Members’ Legislative Proposals and Special Petitions.
The committee is then required to, after consultation with the relevant portfolio committee, to make a recommendation to the house, which must vote on whether the Bill proceeds. The ANC has the majority on committee level, as well as in the house when proposals are voted on.
MP foreclosed from ‘introducing Bill without permission’
In practise the house does not disagree with the committee’s recommendation. What is more, according to Ambrosini, the committee also consults with the executive when readying its recommendation.
“The net result is that an MP is foreclosed from introducing a Bill without the permission, de facto, of the majority party,” he argues.
The court papers also examine other countries such as the United Kingdom, Canada, Botswana, Australia, Zambia and Kenya, where members are permitted to introduce Bills.
Ambrosini has since May 2009 been petitioning Parliament to change the rules to align with the Constitution, but when his pleas fell on deaf ears — he opted to take the matter to court last year.
He has been trying to introduce amendments to the National Credit Act intended to protect heavily indebted consumers who are undergoing debt restructuring from being penalised with interest payments while legal processes take their course.
However far more controversial legislation has been wending its way through the bureaucratic process, notably a proposal by Independent Democrat Lance Greyling to regulate the private funding of political parties.
This is a sore point for the ANC, who has so far flatly refused to reveal its financial backers.
In response the Speaker argued that Section 55 of the Constitution confers the right to initiate and prepare legislation exclusively on the National Assembly and on Cabinet in Section 85.
The rules simply “regulate the process of initiating and preparing such Bills”, his lawyers said in court papers.
The Speaker’s lawyers also argue that the ANC’s majority in Parliament cannot invalidate the rules of the National Assembly.
SA’s ‘distinctive’ Constitution
The comparison to other jurisdictions was useless, they argued, as South Africa’s Constitution and legislative processes are “distinctive”.
But Ambrosini holds that it is “repugnant” to argue that the SA Constitution is “unique in a manner which would render it less democratic”.
In what appears to have been a direct response to the litigation, according to Ambrosini, the National Assembly’s rules committee adopted amendments to rules 211, 235 and 235a which govern members’ Bills, in November last year, during a 45 minute sitting convened for the first time since May 2009.
The changes, tabled this year, however do not deal with the constitutionality of the matter, said Ambrosini.
The amendments require the committee to base its recommendations on a set of criteria. For example, it must question whether a Bill is constitutional, ensure that a relevant government department or ministry is not already making a similar proposal, and ensure that the Bill is not frivolous, vexatious or designed to clog up the system.
As such the committee must base its assessments on technicalities rather than an assessment of the contents of a members’ Bill.
The committee has in the past been criticised for constantly failing to meet, or to achieve a quorum, necessary to deliberate on matters.
In recent months it has however endeavoured to meet regularly and has already processed at least one piece of legislation proposed by an MP.
The proposal involved amendments to the Land and Agriculture Development Bank Act. Introduced by the DA’s Piet Pretorius it was aimed at reducing the powers of the minister when appointing the board members of the Land Bank board. But the committee shot it down, arguing that the executive was already looking into the challenges at the Land Bank and that it sought to deal with the legislation in a holistic manner, rather than through “piecemeal” amendments.
According to minutes by the Parliamentary Monitoring Group, at the meeting where the final decision was taken, there was a substantial delay in deliberations, because the meeting could not quorum for some time.
The court case continues on May 9.