Focus on Rights

Should we re-examine our notion of parliamentary privilege?
When Erskine May defined parliamentary privilege as the "sum of the peculiar rights enjoyed by (the) House collectively and by members individually in order to enable the proper carrying out of constitutional functions." (see Erskine May's Parliamentary Practice, 22nd Ed, London Butterworths, 1997), he was certainly living in a very different world from the agonised convulsions that we are privileged to witness now.

A commonplace feature of current parliamentary life in Sri Lanka, it appears, is abuse of the freedoms of its members and the wholesale ignoring of those 'constitutional functions" for which the House meets. In this context, one is compelled to ask as to whether suitable amendments should not be pressed for in regard to the Parliamentary (Powers and Privileges) Act No 21 of 1953, in order that the privileges of members of Parliament are offset by very particular duties that appear now, to be airily ignored by representatives on both sides of the floor.

In the first instance, as a daily newspaper reported pithily this week, we are now seeing a pattern of the Speaker acting as the censor. This is an obviously ridiculous situation where people in this country are prevented from knowing exactly how and what those who purport to represent them, behave and say.

Journalists in the media gallery are stopped from reporting what takes place as a result of the Speaker ordering that particular words and statement be expunged from the Hansard. Any journalist who wilfully reports such expunged words or statements would be guilty of an offence by virtue of amending Act No 17 of 1980. This is just one of the problematic amendments that were passed to the 1953 Act according to the dictates of Sri Lanka's politicians.

The first amendment of 1978 gave Parliament concurrent power with the Supreme Court to punish in respect of the serious breaches of privilege specified in Part A of the Schedule. One remembers what happened thereafter. Immediately after the 1978 amendment, the then legislature took up a case in which a breach of privilege specified in Part A was alleged to have been committed. The offenders were tried and punished. The whole House sat as a Court.

The accused were journalists working in a newspaper. Following this, one of this country's greatest and most courageous lawyers, Mr S. Nadesan QC wrote a series of articles relating to the powers and privileges of Parliament, commenting on the desirability or otherwise of the punitive action taken by the legislature. These articles were serialised in a newspaper and were then raised in Parliament as an issue of privilege.

They were discussed by a Parliamentary Select Committee, which referred it to the Supreme Court. A five judge Bench held that the articles did not constitute a breach of privilege of Parliament but failed to set out the precise parameters of what constitutes a breach of privilege.

To give the devil its due however, it must be also remembered that in 1994, the then government repealed the 1978 amendment giving back the Supreme Court exclusive jurisdiction in this respect. Consequently, the 1987 amendment to the Act providing for enhanced punishment to be imposed by Parliament for breaches of privilege was also rendered without effect. The 1987 amendment was horrendous in its effect, allowing Parliament to impose a jail term of two years for committing a breach of privilege as specified in Part A of the schedule.

However, we need to call for the repeal of amending Act No 17 of 1980, thus enabling the true state of affairs in the House to be exposed to the Sri Lankan public instead of a sanitised version. We also need the repeal of amending Act No 25 of 1984 which provides, among other things, that the publication of any extract of any paper/minute/report etc. published by order of or under the authority of Parliament bona fide and without malice or a fair and accurate report of any proceedings in Parliament ,(being a publication authorised by Parliament), would not make any one liable to any civil or criminal proceedings.

Here again, this amendment has run counter to the doctrine of the independence of the judiciary wherein it has, in fact, been used by members of parliament to criticise judges in the House without being liable for contempt of court in respect of publications thereto. The context in which this amendment was passed is also too well known to elaborate on at this point.

The rationale whereby freedom of speech is limited constitutionally on the grounds of parliamentary privilege, is not defensible by international norms and standards that Sri Lanka is subject to, including the International Covenant on Civil and Political Rights (ICCPR) which, together with the ECHR (European Covenant on Human Rights), do not include parliamentary privilege as a ground on which right to free speech could be prohibited.

It could therefore be convincingly argued that the rights and immunities accorded to parliamentarians should be balanced in a more rigorous manner than present. Interestingly, a Select Committee of the House of Commons appointed to review similar privileges in England in 1957 recommended that the expression "parliamentary privileges" ought to be replaced in favour of rights and immunities.

As far as Sri Lanka is concerned, is time that we press for the Parliamentary (Powers and Privileges) Act No 21 of 1953 to be returned to its original un-amended version.

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