Erskine May's classic definition of 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," (Erskine May's Parliamentary Practice, 22nd Ed, London Butterworths, 1997) fits a parliamentary order that we are unfortunately quite unfamiliar with.
It has been previously asked in these column pages as to whether the Parliamentary (Powers and Privileges) Act No 21 of 1953 should not be suitably amended in order that the privileges of our parliamentarians are appropriately balanced with their duties? This query remains very apt in a context where the somewhat uncomfortable spectacle of the Speaker acting as the censor has become commonplace. The latest incident of this kind occurred this week when media reportage of an apparently incautious statement by a government minister on the floor of the House, that the leader of the opposition was being held forcibly by members of his party inside a committee room in the parliamentary complex, was castigated by the Speaker.
The crux of the Speaker's castigation was that journalists should not report on what parliamentarians say when their microphones are switched off and that erring media personnel would have their press passes cancelled. However, should the blame in this regard be imposed on the reporters or should it be laid at the door of parliamentarians who make such statements from the floor? This is the moot question.
Parliamentary reporting like tightrope walking
The sum total of such a prohibition is that the voters are prevented from knowing exactly how and what, those who purport to represent them, behave and say respectively. Though a wit may argue that this is not very much anyway, it is the principle that is important. Parliamentary reporting has now become much like balancing on a proverbial tightrope as the restrictions that are imposed are in danger of substantially diminishing the right of reportage itself. For example, journalists are estopped from reporting what takes place at any point that the Speaker orders that particular words and statements should be expunged from the Hansard. Any journalist who willfully reports such expunged words or statements would be guilty of an offence by virtue of amending Act No 17 of 1980.
Amendments to
the 1953 Act
This is just one of the problematic amendments that were passed to the 1953 Act. 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. 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 who were journalists were tried and punished by the whole House sitting as a Court. This incident prompted Mr S. Nadesan QC to write a series of articles 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.
Should only sanitized versions
be given to the public?
Some reform has taken place in this context. In 1994, the then government repealed the 1978 amendment which had given Parliament the power to impose a jail term of two years for committing a breach of privilege as specified in Part A of the schedule to the Act. The Supreme Court was given back its exclusive jurisdiction in this respect. However, we need to call for the repeal of amending Act No 17 of 1980 as well. Why should a sanitised version of what takes place in the House only be reported? If a parliamentarian makes a mistake in his or her statements, then surely it is that parliamentarian who should be held accountable, not the unwitting reporter? This apportioning of responsibility should, in fact, be of general application
Is parliamentary privilege
itself a ground for
restriction of speech?
On an even wider plane, should freedom of speech be limited constitutionally on the grounds of parliamentary privilege anyway? Unlike our Constitution, the International Covenant on Civil and Political Rights (ICCPR) to which Sri Lanka has ratified does not include parliamentary privilege as a permissible ground on which the right to free speech could be prohibited.
Returning the 1953 Act
to its original state
Whether discussions in regard to parliamentary privilege in Sri Lanka are carried to that advanced level of thought is doubtful. However, in the minimum, media industry bodies should reactivate their earlier campaigns for the Parliamentary (Powers and Privileges) Act No 21 of 1953 to be returned to its original un-amended version. After all, there can be absolutely no quarrel with the principle that the 'rights and immunities', (rather than the 'privileges'), of parliamentarians should be fairly balanced along with their duties.
Equally, while journalists should be responsible and fair in their reporting, media coverage of Parliament should be governed by the principle that the public has the right to know. This is a crucial balance that must be maintained, even at the vastly decreased levels of parliamentary accountability that are observed today. |
E-mail