CONSTITUTIONALITY OF LIMITATIONS ON BROADCASTING OF UNPARLIAMENTARIAN CONDUCT AND GRAVE DISORDER

PRIMEDIA BROADCASTING LTD AND OTHERS v SPEAKER OF THE NATIONAL ASSEMBLY AND OTHERS 2015 (4) SA 525 (WCC)
Parliament — Proceedings — Broadcasting — Limitations on broadcasting of unparliamentary conduct and grave disorder — Jamming of electronic signals during turmoil in Parliament — Invocation of parliamentary rules and policy — Constitutionality of such measures — Whether limitations reasonable and justifiable in open and democratic society — Constitution, ss 57(1), 59(1)(b), 70(1) and 72(1)(b).

Sections 57(1) and 70(1) of the Constitution provide that the National Assembly (the NA) and the National Council of Provinces (the NCOP) may determine and control their internal arrangements, proceedings and procedures, and make rules and orders concerning their business. Sections 59(1)(b)(i) and 72(1)(b)(i) of the Constitution provide that the NA and the NCOP must conduct their business in an open manner and hold their sittings in public, but that they may regulate public access (including the media) if it ‘is reasonable and justifiable to do so in an open and democratic society’.
Parliament’s standing rules relating to the broadcasting of parliamentary proceedings (the Rules) provide that during incidents of disorder or unparliamentarily conduct the camera must focus on the occupant of the chair, ie the Speaker of Parliament or the Chairman of the NCOP. This measure is repeated for incidents of ‘grave disorder’ in Parliament’s later Policy on Filming and Broadcasting (the Policy), but ‘(o)ccasional wide-angle shots of the chamber are acceptable’ in the case of unparliamentarily behaviour.
The applicants challenged these measures on the basis that they were not reasonable and justifiable limitations of the open and public nature of parliamentary sittings as contemplated in ss 59(1)(b) and 72(1)(b) of the Constitution; alternatively, that the Policy and the Rules as a whole were irrational for lack of public consultation before they were adopted, and were therefore unconstitutional.
An order was also sought declaring the continued use of a device jamming electronic signals in Parliament unconstitutional and therefore unlawful. This arose from a ‘jamming incident’ which had prevented cellphone use during the first part of the same joint sitting of the NA and the NCOP in which the impugned measures where invoked to limit coverage of the proceedings when it was deemed to have descended into ‘grave disorder’.
The full bench (by a majority) rejected the alternative ground on the basis that it was sufficient that the measures were devised for Parliament’s functioning by Parliament itself, on a fully cross-party deliberative basis. It also rejected the declaratory relief sought in relation to the jamming incident as ‘serving no purpose whatsoever’.
As to the main issue — the reasonableness of the impugned measures —
Held
The public’s right to know what was happening in Parliament was not absolute. The question was whether these limitations were reasonable — regard being had to what they sought to achieve and their context. The measures protected the dignity of Parliament by tempering the especially strong impact that visuals of disorderly conduct, if broadcast to the world, would have. They were designed to discourage disorderliness and unparliamentarily behaviour; indeed they were essential for its ordered operation. Thus, regard being had to all relevant factors, the measures under discussion in the instant matter are ‘reasonable measures’ employed to regulate public access, including access of the media, to Parliament.
Conduct obstructing or disputing Parliament’s proceedings, or unreasonably impairing Parliament’s ability to conduct its business in an orderly and regular manner acceptable in a democratic society, was (in any event) not legitimate parliamentary business, and accordingly there was no obligation on Parliament to broadcast such conduct.
Unreasonableness must be a high standard, particularly when an independent constitutional institution had, through its own internal cross-party processes, drawing on the experience of its own members and with regard to the practice under other constitutional democracies elsewhere, done exactly what ss 59(1)(b) and 72(1)(b) of the Constitution contemplated.
Parliament was constitutionally entitled to ensure its functioning and to protect its own dignity. The challenged measures were reasonable, justifiable and proportionate, striking a balance between the right to be informed about Parliament and the duty to maintain the dignity of parliament.

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