SOVEREIGNTY OF THE PEOPLE: A DEFEAT TO ERSKINE MAY PARLIAMENTARY PRACTICE

There has been an emphasis on the application of Erskine May Parliamentary Practice as an authoritative source of the Ghana Parliament’s elastic conception of its powers.  Within the purview of the common law applied Worldwide, Erskine May, which is uploaded in by successive clerks of the British Parliament, is widely consulted based on consensus as the leading authority on the law of parliamentary practice. 

It can therefore be justified that the application of the Erskine May Parliamentary practice is substantially informed in Ghana’s own Standing Orders.  However, while both Erskine May and English parliamentary precedents may serve as a useful guide for common law parliaments generally, they have no mandate to control the remit of Ghana Parliament’s power.

The foundation, of which Westminster Parliament was built on the application of Erskine May Parliamentary Practice, is a “sovereign” Parliament. This can also be described as the total independent and authoritative parliamentary practice.  Its powers are theoretically, without limit.  Thus, the Westminster Parliament enjoys “supremacy” within the English constitutional system.  This is not the case with Ghana’s Parliament.  Unlike the U K, Ghana’s constitutional system is not based on the notion of the Sovereignty of Parliament.  The 1992 Constitution is based on the “Sovereignty of the People” and the supremacy of the Constitution, a fact that is affirmed in Article 1 of the Constitution. This clearly states that “The Sovereignty of Ghana resides in the people of Ghana in whose name and for whose welfare the powers of government are to be exercised in the manner and within the limits laid down in this Constitution.”

 

There is a serious implication on the application of these two scopes of parliamentary system of practice. There are different dynamics to the practice of these two systems. Being a constitutionally sovereign parliament, the powers of the Westminster (English) Parliament are constitutionally unlimited.  Only the Westminster Parliament may limit its own powers.  This is not therefore applicable under Ghana’s constitutional system.  In our system, not only are Parliament’s powers limited by the Constitution, but those powers emanate from the people and are to be exercised on their behalf and for their benefit.

   

The notion that the Ghana Parliament may use its powers to punish citizens for merely saying unflattering, even unspeakable, things in the public square about their MPs, individually or collectively, is at variance with the philosophy that underpins our constitutional system. Under our system of government, it is Parliament that is subordinate and accountable to the people; the people are not accountable or subordinate to Parliament or to their elected MPs for that matter.  Our Parliament cannot use an expansive conception of “contempt of Parliament” to reverse this normative hierarchy between the people and their paid representatives.

In terms of its underlying constitutional philosophy, the Ghana Parliament is far more like the American Congress than it is like the Westminster Parliament. Unlike their Westminster counterpart, both the Ghanaian and the American constitutional systems are founded on the idea that sovereignty in the republic resides with “We the People”.  The US Supreme Court has long recognized this essential difference between the American Congress and the English parliamentary model and its implication when it comes to defining the scope of Congress’ powers.

As far back as 1881, the US Supreme Court held, in a case called Kilburn vs. Thompson, that the Congress of the United States did not have a limitless power.  In that case, the US Supreme Court disallowed the use by Congress of its powers to pry into the personal finances of a private individual on the ground that the action by Congress was not related to performance of any of Congress’ responsibilities.  Moreover, the Court expressly rejected any reliance on English precedents to establish the scope of Congress’ powers.  The Court stated that, “we are of opinion that the right of the House of Representatives to punish the citizen for their unguarded statements of its authority or a breach of its privileges can derive no support from the precedents and practices of the two Houses of the English Parliament, nor from the adjudged cases in which the English courts have upheld these practices.”

The Court further noted that, “this power exists as one necessary to enable either House of Congress to exercise successfully their function of legislation”.  Not surprisingly, under the American constitutional system “contempt of Congress” cannot be used to punish a member of the public who uses harsh words to describe Congress or members of Congress in public.

  

In fact, even Erskine May’s Westminster no longer uses contempt of Parliament to punish so-called “abusive contempt”—the kind of alleged contempt things said or published in a public forum or media by private citizens.  The last time a non-member of the British Parliament was reprimanded at the bar of the House of Commons over a published story was on January 4 1957, when the editor of the Sunday Express was rebuked for some remarks he had printed alleging that some MPs were evading  petrol rationing introduced in the wake of the Suez Canal crisis.

  

Both Houses of the British Parliament now require evidence of a substantial interference with the business of Parliament before an act or omission of a non-member would be treated as contempt of Parliament.  “Abusive contempt” has also been abolished in Australia, another common law jurisdiction heavily influenced by Westminster in its parliamentary traditions and practice.  Australia’s Parliamentary Privileges Act (1987) states that, “Words or acts shall not be taken to be an offence against a House by reason only that those words or acts are defamatory or critical of the Parliament, a House, a committee, or a member.”  In short, even in jurisdictions where the influence of Westminster parliamentary practice holds sways, the kind of act for which most Ghanaians are being subjected to contempt proceedings by the Ghana Parliament have long ceased to be treated as contempt of Parliament.

WHEN YOU RISE TO EMINENCE BY MERIT,

YOU ARE RESPECTED AND THY NOT DEJECTED

Quote from the Masonic Book