National Assembly Speaker Baleka Mbete has the power to decide if a disruption is serious enough to justify calling the police or troops, parliament's lawyer said yesterday.
Arguing before a full bench of the Cape High Court, Jeremy Gauntlett SC said there was no need to declare part of the law governing parliament unconstitutional, as there were other remedies if anyone believed the Speaker had exceeded her powers by calling the police into the National Assembly.
The Democratic Alliance wants the court to declare section 11 of the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act unconstitutional because it refers to "persons" creating a disturbance, not MPs.
The DA brought the case after the events of February 12, when Mbete ordered the police and guards to evict EFF MPs from the chamber ahead of the State of the Nation address.
DA senior counsel Sean Rosenberg said members of both houses of parliament were not liable for arrest for anything said in the legislature, or its committees, therefore section 11 authorising arrest should be declared unconstitutional or not apply to MPs.
"The power to use the police to curtail freedom of speech and parliamentary privilege now resided in the hands of a parliamentary official who was also a ruling party member," Rosenberg said.
He argued that using the police, who fall under the executive arm of the government, to arrest MPs was in contravention of the principle of the separation of powers.
However, Gauntlett described the DA's position as "fundamentalist", because it was made clear in the constitution that the security service, which includes the police, was responsible for the safety of parliament.
"If a person has issues about the way the Speaker applies her judgment, then there are other remedies that can be taken, but the law does not have to be changed."
Judge Nolwazi Boqwana reserved judgment.
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