No more input allowed on Fica bill
Parliament's rules forbid any issue other than the president’s reservations — the constitutionality of warrantless searches
Parliament’s standing committee on finance will not entertain any deliberations on the Financial Intelligence Centre Amendment Bill which stray beyond the constitutional issue of warrantless searches raised by President Jacob Zuma, says committee head Yunus Carrim.
The joint rules of Parliament forbade any issue to be entertained other than the president’s reservations, he said.
His comments on Wednesday quashed the hopes of the Progressive Professionals Forum (PPF) that Zuma’s referral of the bill back to Parliament would allow it to raise objections to other aspects of the bill during an oral submission.
This request was made in a letter PPF general secretary Siphile Buthelezi wrote to Carrim. Buthelezi confirmed that the PPF wanted to discuss "all the points raised in the PPF objection letter which was sent to President Zuma".
Forum president Mzwanele Manyi has been described by the EFF as "an agent of the Guptas" as he has been critical of the termination of the Gupta family businesses’ accounts by the four big banks and of the operations of the Financial Intelligence Centre (FIC), which is key in fighting money-laundering.
"The committee cannot initiate a process to reconsider any other provisions of the bill," Carrim said after the meeting.
"Although the committee may receive written representations, it has complied with its constitutional obligation to facilitate public involvement in the process of considering the bill. Hence it cannot redo this process. Once [it] has concluded its deliberations, it must report to the National Assembly."
The committee also agreed it would seek independent advice from senior counsel, and if lawyers were convinced the bill was constitutional, it would not be amended, Carrim said.
"This is not a policy matter. It’s a constitutional matter, and it’ll have to be primarily decided by lawyers. If the lawyers Parliament consults can’t agree, we can maybe delete the provision. But it’s also possible that the Constitutional Court might have to decide on this."
The committee will hold public hearings in late January — tentatively on the 24th — on the constitutionality of warrantless searches. Oral submissions will be heard, which is unprecedented in cases of bills being referred back to Parliament.
Carrim said the bill’s stipulation of the circumstances in which warrantless searches could be carried out had been recognised in principle by the Constitutional Court as valid bases for exceptions to standard warrant requirements.
FIC executive manager Pieter Smit told MPs the Criminal Procedure Act provided for the same provision for warrantless searches as the Fica bill.
Between April 1 2011 and the end of March 2016 the FIC had conducted 930 inspections, all of which without a warrant, and all with the consent of the inspected parties.
Furthermore, Smit said three Constitutional Court judgments had endorsed the deviations from warrants contained in the Criminal Procedure Act.
Warrantless searches as such were constitutionally acceptable but the circumstances in which they could take place had to be circumscribed.
Parliament’s legal adviser, Frank Jenkins, noted that a total of 11 bills had been referred back to Parliament by the president since the mid-1990s.
Treasury deputy director-general Ismail Momoniat noted that the FIC amendment bill had been scrutinised by the state law advisers, Cabinet ministers, stakeholders and MPs before it was adopted by Parliament.
In particular, the Office of the Chief State Law Adviser had endorsed the constitutionality of the clause on warrantless searches in a specific legal opinion before the bill was submitted to the Cabinet in 2015.
He also noted that no constitutional objections were raised during the period of public comment on the bill.