PARLIAMENT’S CONTEMPT POWER: JUSTIFIED BY ARTICLE 122 AND 123?

There is an irreducible quality in the experience of uncoerced choice which leads men to risk their very lives on its behalf. Whether our choices are good or bad, wise or illogical, we feel diminished as humans if we are prevented from them. Denied freedom to make choices, we are denied responsibility and to deny responsibility is to deny our humanity in cogent and rational terms in the sphere of the World.

It is beyond question that our Parliament, like all parliaments, is vested with “the power to punish for contempt.”  The Constitution expressly affirms that fact in Articles 122 and 123. The question that remains to be answered to the public and citizenry is the scope and content of Parliament’s contempt power. Specifically, against whom and for what conduct may Parliament use its contempt power? This equivocal provision of the constitution has resulted in a suspended legal argument as to whether parliament has the sole mandate to cite individuals for contempt of parliament as a result of their misconduct as oppose to their conduct towards others. The debate has further extended to a defined territorial boundary of operations of Parliament.

Article 122 defines as contempt of Parliament, “Any act or omission which obstructs or impedes Parliament in the performance of its functions or which obstructs or impedes a member or officer of Parliament in the discharge of his duties, or affronts the dignity of Parliament or which tends either directly or indirectly to produce that result”. While helpful as a starting point, this provision alone does not provide enough clarity or guidance as to the scope or content of Parliament’s contempt power. In other words, it is a provision that, like many others in the constitution, requires interpretation. Where, then, might one look to get a clearer picture of the meaning and scope of Parliament contempt power?

Legal luminaries point fingers at Article 123 to justify and provide unadulterated concrete and impeccable evidence. But that provision adds little to the understanding of the scope and meaning of Parliament’s contempt power. It merely says that, the fact that a particular conduct offends a provision of the criminal laws does not mean it cannot also be treated separately and additionally as contempt of Parliament. For example, if a witness appearing under oath before a committee of Parliament intentionally gives false testimony to the committee, that act may be prosecuted as perjury under the criminal laws and, at the same time, as contempt of Parliament. Article 123, therefore, merely tells us that, in some cases a person may be punished twice for the same offence; first, for contempt of Parliament, and second, for violating some other provision of the Criminal Offences Act. Thus, while Article 123 further affirms Parliament’s contempt power, it does not help us determine the scope or permissible uses of that power.

What about Article 115?  Article 115 states that, “There shall be freedom of speech, debate and proceedings in Parliament and that freedom shall not be impeached or questioned in any court or place out of Parliament.”  This “Speech and Debate clause” confers no power on Parliament as such. What it confers is a privilege in the form of an immunity or protection from lawsuit or civil or criminal liability. And that immunity is conferred on MPs for the things they say in the course of debate and proceedings in the House or in committee.

Thus, a statement by an MP, which might otherwise be deemed defamatory if said outside Parliament about a named individual, would carry no legal consequence if made on the floor of the House or in committee-although Parliament itself, pursuant to Article 116(2) can treat the matter as a breach of privilege and require the Member to render appropriate apology.

Article 115 is designed to encourage robust and frank deliberations in Parliament. It recognizes the fact that, as Parliament is a political chamber whose members must represent and articulate the concerns, grievances, frustrations, and demands of their diverse constituents, debate and deliberations in the House or committee might get passionate, heated, and acrimonious.  In addition, members may not always come to these debates with full knowledge or information on the matters in discussion.

The privilege conferred by Article 115 is, therefore, important to ensure that members participate in the deliberations of the House or a committee without fear of personal legal liability. One cannot help but note the irony that, while the Constitution protects MPs from legal liability for the wrongful things they might say about others in the course of proceedings or debate in Parliament, these same MPs now seek to use Parliament’s contempt power against everyday citizens who voice unflattering or demeaning opinion about MPs in the public square.

I have also heard Article 115 invoked for the proposition that, nothing Parliament does within the four walls of the House or a committee, including proceedings for contempt of Parliament, can be challenged in court or anywhere.

This reading of Article 115 is, of course, clearly erroneous. First of all, as the UK Government’s 2012 Green Paper on Parliamentary Privilege explains, “The term “’court or place out of Parliament’ has never been read as meaning any place, as this would have the absurd effect of stopping questioning of what was said in Parliament on the streets or in newspapers.

Instead, in keeping with legal principles of interpretation, the assumption has been that the term applies to bodies which are similar courts-the most obvious being the tribunals”. The immunity of MPs enjoyed under Article 115 is immunity from personal legal liability and cannot in any way be read to confer on MPs immunity from public censure by citizens engaged in routine conversation in the public square.

Secondly, the privilege or immunity conferred under Article 115 is limited to “Freedom of Speech, debate and proceedings”. Therefore, it is only the exercise by MPs of their freedom of speech in the context of debate and proceedings of the House that may not be challenged in any court or tribunal. Article 115 does not extend blanket immunity to every act done by MPs in parliament. For example, if a witness appeared before parliament and was physically assaulted by a member of parliament, that member could not hide behind Article 115 to clear immunity from being sued in tort or prosecuted for assault.

During the scandal that broke over British MPs presenting false expense claims, some defendants in criminal trials relating to the scandal argued that they could not be prosecuted on the basis that submitting claims for expenses was protected by parliamentary privilege; this argument was unanimously rejected by the UK Supreme Court in R v Chaytor (2010).

As a general proposition, parliament is protected by the principles of separation of powers from having the courts pry into the everyday internal business. However, that general principle holds true only if parliament is acting or has acted within its lawful authority and jurisdiction. If parliament acts in excess of its powers, it cannot escape judicial challenge and scrutiny for its unconstitutional acts by invoking Article 115 or any provision for that matter.

Parliament powers spring from the constitution, and only when it stays within the limits of its constitutionally delegated powers is it entitled to non-interference in the conduct of its internal business. In short, Article 115 does little to advance our understanding of the content of parliament’s contempt power. We must therefore, continue to look elsewhere for further clarity.