Focus on Rights

Wherein the privileges of Parliament?
Contempt of court and parliamentary privilege are now becoming increasingly common in their use against the media and the public in this country. Interestingly, there have also been tussles between the courts and Parliament, (two fittingly gargantuan institutions), themselves where, at least on one notable occasion, parliamentarians won the day over judges (see Hewamanne v Manik de Silva & Another, (1983, 1 SLR, 1).

The veneration traditionally accorded to parliamentary privilege also came under critical judicial scrutiny in De Silva v Jeyaraj Fernandopulle and Others (1996, 1 SLR, 22), when a majority judgement of the Supreme Court ruled that remarks made by a member of parliament in the House could be utilised against him to controvert sworn statements made in an affidavit to court.

Here, the Hansard was used to test the credibility of an affidavit of a government Minister submitted to court, a majority of the Court ultimately holding against him in a fundamental rights petition brought against the Minister.

Ironically, strikingly similar principles apply in the determination of when contempt of court and breach of parliamentary privilege could be found. In both, on the one hand, we have the preservation of fundamental freedoms so important to individual and collective life, (which marks us as a still functioning democracy). On the other, we have the safeguarding of "those peculiar rights enjoyed by parliamentarians", (at least theoretically), to enable the proper carrying out of their constitutional functions in one case while in the other, the scales balance the sanctity accorded to the institution of the judiciary.

While this column has examined in the past, the law and the norms applicable to contempt of court, (which emphasizes in the first instance that contempt of court cannot be used to deify judges but rather to ensure the due administration of justice), it will in this instance, look at the background and practices justifying the phenomenon of parliamentary privilege.

This is occasioned at least in part by the furore in the House this week when, as one newspaper put it appropriately enough " googlies and doosras flare(d) over congratulatory notes to Murali."

The issue was the alleged mis-reporting over the electronic media of what had transpired in court when JVP MP Wimal Weerawansa stated that his congratulatory statement on Muralitharan's marriage had been distorted by a private television channel and a radio station.

This apparently led to an exchange of words over the floor of the House where UNP MP Ravi Karunanayaka had interpolated that if breaches of privilege were to be found in this manner, then hundreds of privilege motions will have to be moved against the state media in reference to its mud slinging campaigns.

The exchange was meanwhile characterized by other statements by parliamentarians and the Speaker centering on the wholly hilarious question as to whether the House should become a "magul sakwalak" or not,

Wednesday's exchange follows a number of instances in the recent past where editors and journalists of both the print and electronic media had been called before the privileges committee for cited breaches. This phenomenon is, of course, nothing new, calling to mind what remains still one of the most remarkable instances where a most serious debate arose over the extent and reach of privilege.

This arose immediately after an 1978 amendment was passed to the Parliamentary (Powers and Privileges) Act No 21 of 1953 giving Parliament concurrent power with the Supreme Court to punish in respect of the more serious breaches of privilege specified in part A of the schedule to the Act. The whole House sitting as a Court, tried the offenders and punished the accused journalists of a breach of privilege in part A.

Following this, Mr S. Nadesan QC, (one of Sri Lanka's most courageous civil rights lawyers), wrote a series of articles that were serialised in a newspaper, relating to the powers and privileges of Parliament and commented on the desirability or otherwise of the punitive action taken by the legislature consequent to 1978.

These criticisms were raised in Parliament as an issue of privilege and discussed by a Parliamentary Select Committee which, (fortunately for the sake of sanity at that time), 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.

In 1994, the then government repealed the 1978 amendment giving back the Supreme Court exclusive jurisdiction in respect of breaches of privilege in part A of the schedule. However, amending Act No 17 of 1980 which made it an offence to wilfully publish any words or statements after the Speaker had ordered such words or statements to be expunged from the Hansard as well as amending Act No 25 of 1984 which conferred immunity from civil or criminal proceedings, (including contempt) to inter alia any publication, bona fide and without malice, of any extract of any paper/minute/report etc. published by order of or under the authority of Parliament, or a fair and accurate report of any proceedings in Parliament, still remain in force.

Insofar as the specific question of privilege is concerned, it is relevant that a Select Committee of the House of Commons appointed to review similar privileges in England in 1957 recommended that the expression "parliamentary privileges" be abandoned in favour of the term "rights and immunities."

Indeed, the International Covenant on Civil and Political Rights (ICCPR, Article 19) by which Sri Lanka is bound in international law or the ECHR, (European Covenant on Human Rights), the latter being as it is, of high persuasive authority to us, do not include parliamentary privilege as a ground on which freedom of speech could be prohibited. This is in contrast, of course, to the present constitutional position.

Should the rights and immunities accorded to parliamentarians be limited to matters concerning the discipline of its own House? In all other matters, is it necessary that members of Parliament be given privileges over and above those accorded to citizens of the country? These are questions that might appropriately be raised now along with the connected query as to whether it is time that the Parliamentary (Powers and Privileges) Act No 21 of 1953 is returned to its original un-amended position?

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