Nurul Izzah’s Parliamentary Outbursts is No Privilege
While Members of parliament (for convenience Members) can be said to enjoy absolute privilege in terms of freedom of speech and debate during ‘proceedings in parliament’, not all of such speech engaged in by Members may fall within ‘proceedings in parliament’.
There has been considerable debate over the different forms and occasions of communications by Members which could fall within the definition of qualified privilege, especially in relation to their correspondence with Ministers, and between constituents and Members.
The British Parliament’s Parliament and Constitution Centre has described qualified privilege as ‘a legal concept extending well beyond the scope of parliamentary privilege’, the law of which is based primarily common law.
Qualified privilege exists where a person is not liable for an action of defamation if certain conditions are satisfied While freedom of speech for Members is clearly protected within the chamber or committee rooms, Members are not immune from the ordinary laws of defamation in respect of words and statements spoken outside of the chamber or committee rooms. In fact, in an important development supported by recent court decisions have potentially cleared the way for actions in defamation on the grounds that words uttered outside parliament may be actionable because by reference they include statements also made in parliament under privilege.
WHO DECIDES WHAT PRIVILEGE IS AND WHEN IT APPLIES?
The principle of ‘control by parliament of its own affairs’, free from interference by the courts, is referred to as ‘exclusive cognisance’. Exclusive congnisance is a critical component of parliamentary privilege. Not only is parliament independent from the (executive) government and judiciary (in a bicameral parliament).
In a bicameral house exclusive cognisance extends to each House’s, as each House is independent from the other (the senate and the House of Commons). In a bicameral parliament each of the senate and the House of Commons has the right to decide the validity of its own proceedings and the powers it possesses to for instance command the attendance of witnesses or the production of documents in proceedings before it. Sir William Blackstone in his Commentaries on the Laws of England, said thus of this point:
‘the whole of the law and custom of Parliament has its origins from this one maxim, that whatever matter arises concerning either House of Parliament, ought to be examined, discussed and adjudged in that House and not elsewhere’.
While many issues prevail regarding the law of parliamentary privilege there is one area which is rarely challenged. That is the significance and centrality of parliamentary privilege to parliamentary democracies. Meaning in short that only the House (or both Houses acting independently of the other or on concert) may decide how to decide on and punish a member for what’s done within parliament. And dare I suggest that that discretion and power could also extend to the referring of a complaint of abuse of privilege or outrage on the judiciary and courts to the Inspector General of Police under any law or rule parliament as a House decides in the exercise of its discretion and powers should be the case.
WHAT IS THIS PRIVILEGE WE TALK OF?
Parliamentary privilege has long been considered essential in enabling parliaments to perform their functions as representative institutions, in creating effective legislation and in scrutinising government activity.
These privileges, which are an exception to ordinary law, are comprised of freedom of speech and debate, freedom from arrest, exclusive cognisance of the Houses, and the power of Houses to punish contempt. Immunities, belonging to individual Members acting in a collective capacity, such as freedom of speech, are seen as protections rather than privileges outright that allow parliamentarians to perform their duties without fear of intimidation or constraint.
The powers belonging to a House of Parliament to punish contempts and regulate its own constitution are, widely recognized by academics and lawyers alike to be ‘for the protection of Parliament’s own authority and dignity’ not for that of any individual parliamentarian or their ‘party’.
The (law) and practice of parliamentary privilege is complex and that complexity has given rise to many tensions and uncertainties in its practice. Issues such as sub judice, search warrants and subpoenas, the power of Houses to punish contempts, citizen’s right of reply, immunity of non-Members and the scope of freedom of speech have, on occasion, brought parliaments in conflict with constituents and the executive and have resulted in substantial number of court challenges and litigation.
The history of court challenges and litigation on this subject of parliamentary privilege provides no discernible direction or trend or authority as most challenges turn on the particular facts at issue’ no two of which are similar in every respect.
The structure and practice of privilege in many jurisdictions has elucidated the conflicts and tensions that exist in maintaining an effective separation of power between legislatures, the judiciary and the executive.
Centuries of developing legal and procedural rules and frameworks with respect to the issue of parliamentary privilege hasn’t altered the uncertainties surrounding the role each of the 3 arms of government is intended to perform. The only certainty is that these ambiguities will continue to exist. Indeed, the idea that parliamentary privilege is a complex topic of which there are still persistent ‘grey areas’, some of which may never be resolved is echoed in extensive literature on the subject.
Parliamentary democratic governments founded on the principle of the separation of powers doctrine will inevitably encounter tensions in their attempts to attain a balance between accountability, transparency and effective governance.
WAS NURUL IZZAH’S OUTBURST COVERED BY PRIVILEGE?
Parliamentary privilege is an integral part of what the House of Representatives is. Without those privileges, powers and immunities or if they had taken a different form, there would have been a different House. As the (lower) House ‘is master of its own proceedings and free of judicial control, the concomitant consequence of this freedom is that it is principally for the House to assert and enforce its own privileges’.
There are no constitutional relief valves for anyone caught in the vice of the power of the House for violating privilege as if it belonged uniquely to them as an isolated unrelated constituent of ‘the House’. It is often said that ‘the despotic power of government lies with the House’. What is clearly not understood by many political commentators, academics and lawyers alike is that firstly the idea of political parties is a fiction.
The constitution does not expressly recognize political parties. These are an invention of the late 16th Century (as some commentators and historians suggest) when the powerful Churches in their efforts to control government after Henry VIII broke away from the Roman Church sought ways of influencing government. Some say the formation of political parties and voting along party lines in parliament (a very undemocratic practice) has its genesis in a time even longer ago before Henry VIII’s break with the Roman Church in the time of Socrates in Greece. Either ways one looks at it, the current predicament faced by Nurul Izzah Anwar PKR member for her outbursts in parliament bringing the judiciary and courts into disrepute constituting an outrage on the judiciary will further erode the credibility of her family in political circles.
Nurul Izzah’s outbursts which cannot simply be justified for its undignified language and tone and it certainly cannot be protected by her interpretation of the privilege she claims under parliamentary free speech. Nurul Izzah’s comments are an outrage in any language. It serves no useful purpose. She could well have made the same comments before the trial, or gone to the ICJ with her complaint about the Malaysian judiciary and the courts of Malaysia with the evidence to prove that Anwar Ibrahim could not possibly secure a fair trial in Malaysia. On her evidence if proved it could have served as an indictment on the courts and the justice system in Malaysia.
The cacophonic chorus of supporters she joined with including former diplomats, lawyers and the Malaysian Bar whose ideas of justice and fairness are nothing more than self-serving statements have served to ridicule her and her father’s cause further than it should have.
IS PARLIAMENTARY PRIVILEGE ABSOLUTE?
In the United Kingdom parliamentary committees have conducted several reviews into the scope and application of privilege and have decided against the codification of privilege.
The Clerk of the House warned against codification in the House of Commons Select Committee on Parliamentary Privilege as noted in its report in 1977:
“It would be a mistake first and foremost because it would introduce an element of inflexibility into the manner in which the House upholds its privileges and punishes contempts. It is true that the House would be in no danger of abridging its privileges or powers by a mere resolution setting out the sort of cases upon which it normally proposed to act. But formulas which may appear precise and faultless at the time at which they are drafted, may be found to be defective at a later stage owing to some undiscovered loophole or developments which could not be envisaged at an earlier stage.”
In principle, parliamentary privilege may present issues on which courts must rule in carrying out their duties. In other words some part of parliamentary privilege may become actionable through the courts and brought before a court.
The problem is this: Central to the nature and functioning of parliamentary privilege is that it should to free from amongst other intervention, judicial control. The only way by which such justiciable issues can therefore be resolved before the courts where it concerns parliamentary privilege necessarily requires that the courts exercise their functions in a way that is consistent with this principles of non-intervention in parliamentary matters.
The separation of the legislature and the judiciary. The broad rule, derived from case law, is ‘that the courts will inquire into the existence and extent of privilege but not its exercise’.
Article 9 of the Bill of Rights 1689 (UK) is fairly proscriptive in regard to such proceedings and it explicitly provides that parliamentary proceedings should not be ‘impeached or questioned in any court or place out of parliament’.
The UK Joint Committee Report notes that this legal immunity is ‘comprehensive and absolute’. Furthermore, academics have asserted that this ‘prohibition is statute law and, unless there has been amending legislation to the contrary, the protection this immunity confers on the House may neither be waived or not insisted upon by either House’.
ADVICE TO ANWAR
If Anwar should indeed secure the pardon of the King, his return to the House and his ‘rights’ therein will still be subject to the discipline, the powers and the discretion of Parliament as a House.
Parliament could silence him, deny him entry to the House, censure his speeches and thwart any attempts by him to use the House for furthering his political aims through Parliament.
What is clear in all of this is the patience exercised by Parliament for over a decade of abuse by Anwar and his family, his lawyers, the Malaysian Bar and those others in opposition who have claimed all along to have absolute rights to what they have undertaking in attempting to bring the government (and the courts) down.
The government in our view appears to be cracking down and doing so in a very subtle and consistent manner. It is now just a matter of time waiting for that ‘knock on the door’ for many in the opposition. It will come.