FOCUS: What Is Parliamentary Privilege?

Welcome back to Parliament 101 for 2015. Hopefully, you have had a happy break and are looking forward to the challenges and opportunities of the new school year. One of
02 Feb 2015 10:16
FOCUS: What Is Parliamentary Privilege?

Welcome back to Parliament 101 for 2015.

Hopefully, you have had a happy break and are looking forward to the challenges and opportunities of the new school year.

One of the big issues that arose in the Parliament while Parliament 101 was in recess concerned the proper use of “parliamentary privilege”.

Madam Speaker even had to intervene in a heated debate in December to remind both sides of the Parliament to be respectful in using parliamentary privilege.

Parliamentary privilege is a relatively easy concept to understand. But, as the political fireworksin December showed,it is not so easy to apply in practice.

So, this week Parliament 101 takes a look at parliamentary privilege and why it provokes controversy at times – both real and confected.

One of the features of parliamentary privilege that contributes to making it controversial is its name.

People who do not know what it means tend to think of parliamentary privilege in the same way that they understand “privilege” – a special benefit or advantage that is only given to a select few.

However, parliamentary privilege is not a special honour or favour to MPs.

It is a core tool of their trade; one that they need in meeting their obligation to serve the public.

At its simplest, parliamentary privilege refers to the protections that the Parliament enjoys from outside inference in its work.

As simple as this might sound, it is frequently misunderstood by public, and not infrequently even by the MPs themselves.

The concept of parliamentary privilege is essential to the centrality of the Parliament in the political process.

If the Parliament is to be the highest level of political authority in the land, under the Constitution, it must be protected from undue interference from the other two arms of governance – the executive (the Government) and the judiciary (the courts).

It is essential that the Parliament provide a free and open arena for discussion by its members of the affairs of the country.

Without some protection for this freedom, parliaments could not discuss all matters of importance effectively, completely and transparently.

Section 73 of our Constitution provides the protection of parliamentary privilege to every Member of Parliament by guaranteeing that MPs have “freedom of speech and debate in Parliament”.

This freedom is defined as “parliamentary privilege and immunity in respect of anything said in Parliament or its committees.”

The Fijian constitutional provision traces it origins, as do all Westminster parliaments, one way or another back to the 1689 Bill of Rights in England.

This enactment of the English Parliament is the basis for the modern supremacy of parliament in the political system.

Article 9 of the 1689 Bill of Rights said, “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament”.

Basically, this protection was meantto ensure that neither the Executive nor the courts could intimidate MPs by using the debates and proceedings of the parliament as evidence in any court against an MP.

In many ways, the parliamentary privilege of free speech is rather like the privilege that exists in lawyer-client confidentiality.

In order to allow a client to tell a lawyer whatever might be necessary to defend the client, the information shared must be protected.

Thus, a court cannot compel the lawyer to disclose such information unless the client agrees.

Similarly, as the Constitution says, parliamentary privilege protects the MP from criminal or civil action in a court for what they say on the floor of the Parliament or in its committees.

The inclusion of committees is more important than you might imagine. Unless you are elected to Parliament, you cannot speak on the floor of the Parliament.

However, you might give evidence before a committee and so need the protection of privilege. You might see this at work in the Public Accounts Committee hearings.

Yet, any freedom is open to abuse if not used appropriately.   Critics have sometimes referred to parliament as “coward’s castle” because occasionally MPs make damaging claims in parliament irresponsibly.

It does not matter whether the claim was made out of ignorance, false belief or malice.

There are a couple points that need to be understood, however, to help put the charge of “coward’s castle” complaint into perspective.

One of the privileges of parliament is that the Parliament itself can sit as a court to deal with any misuse or abuse of parliamentary privilege.

Section 73 of the Constitution states that the “Parliament may prescribe the powers, privileges and immunities of members of Parliament and may make rules and orders for the discipline of members of Parliament.”

Thus, while a court cannot discipline an MP that uses parliamentary privilege irresponsibility, the Members themselves can deal the matter with “in-house”.

The way it does this is through a special sub-group called the “Privileges Committee”.

The Privileges Committee is one of four Select Committees of the Parliament.

It is charged with considering “breaches of privilege that may be committed by any person” including its own Members.

The Privileges Committee investigates any complaint referred to it but it does not actually decide the matter. Its findings are reported back to the whole Parliament. It is up to the Parliament to decide whether to agree with the Committee and to impose any sanction for a breach.

This leads to another pointabout the freedom of speech in Parliament. While the proceedings of the Parliament are fully protected inside the Parliament, this does not apply to how these proceedings are reported outside the Parliament.

Direct and accurate reporting is protected by what is called “absolute privilege” but adding a comment or interpretation to what is said in Parliament may not be protected.

When reporters add interpretation or colour to what was said, the comments might have only “qualified privilege”.

Qualified privilege gives limited protection to reporting on the Parliament.

The re-publishing of parliamentary proceedings must be fair, unbiased and without malice.

The line between absolute and qualified privilege can be indistinct which why many news agencies get legal advice on using parliamentary material that may be controversial.

Parliamentary privilege is a very complex legal minefield and not a subject for amateurs!

A third point about parliamentary privilege concerns the assumption that there is only one – the freedom of speech within Parliament.

This is the most famous privilege but it is not the only one.

Parliament 101 has already mentioned two other privileges. Did you spot them?

The two mentioned above are the right of the Parliament to regulate its own internal affairs and the other is the right to punish offences against the privileges of the Parliament. Both are important privileges of the Parliament.

There are others as well as these and we might return to them in a later column.

Response to Reader’s Questions:

If you have a question on the Parliament please write to the address below.  Parliament 101 cannot answer every question but the question deemed best each week will get an answer and a small reward for a good question.
Email:  sokov@fijisun.com.fj
skype:  soko.vakacegu
Post: Parliament 101
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OR  address to Parliament 101 and drop at Fiji Sun offices at MHCC, Nadi, Lautoka or Labasa.

 – Professor Richard Herr is Adjunct Professor of Governance and Ethics at the Fiji National University.  The FNU acknowledges the support of the Fiji Sun and that of the Embassy of Japan through the Candidates’ Manual School’s programme.

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