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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Parliamentary Privilege

David Clark

Legislative oversight of the executive — Legislative independence — Legislative power — Legislative rules and restrictions

A.  Core Definitions

1.  Common Law Systems

1.  ‘Parliamentary privilege’, an English legal term, covers the sum of the powers and immunities of both the legislative bodies and legislative body members (Erskine May 65; The Law of Parliamentary Privilege in New Zealand: 1996, 5 para. 15; Vaid para. 29). It is now regarded as an old-fashioned term, given that in modern English privilege often refers to matters that are undeserved and possibly elitist (Gordon and Jack para. 13). Nevertheless, many common law states continue to use the term, as in the United States (Rules of the House of Representatives, 114th Congress, Rule XI (US)), even though in the United States the term ‘legislative privilege’ is normally used, since the Congress is not a parliament (Cushing 215).

2.  In practice, in common law systems the term ‘privileges’ is a global expression covering all the powers and immunities of both the houses of the legislature and their members. Since the English system is an historical product, there is no rigid delineation between ‘privileges’ and the terms ‘immunities’ and ‘powers’. The terms are often used interchangeably, for example the ‘privilege of free speech’ is also an immunity of legislative body members from civil actions for defamation.

3.  In this article, the terms ‘immunity’ and ‘privilege’ will be used interchangeably unless the context otherwise requires. Similarly, the terms ‘parliament’ and ‘legislature’ will also be used interchangeably.

2.  Civil Law Systems

4.  In civil law systems two terms are normally used. In Germany, the term immunity is preferred rather than the English term privilege (Basic Law of Germany, Art. 46 (Ger)), as it is in the Basic Law of the Knesset (Basic Law of the Knesset, ss 17–18 (Isr); Van Der Hulst). Art. 46 of the Basic Law of Germany is also said to include the notion of indemnity which, as we will see, is the functional equivalent to some of the immunities enjoyed in common law systems (Parliamentary Immunity: A Guide for Members of the German Bundestag 3, para. 2 (Ger)). The same distinction is made in South Korea (Constitution of South Korea, Arts 44 (immunity) and 45 (indemnity)).

5.  In France, the terms used are ‘irresponsibility’, which deals with absolute immunity for acts within the mandate of deputies such as opinions and votes cast in the assembly, and ‘inviolability’, which deals with acts of deputies outside their mandate but which may affect their ability to carry out their official duties (Fact Sheet: The Status of Members: Role and Powers of the National Assembly: 15 April 2014, paras 1 and 2 (Fr); Sénat de France, L’immunité parlementaire:June 2014, 5 (Fr)).

B.  Scope

6.  This article will consider parliamentary privilege and immunity in common law and civil law states. Examples will be drawn from the United Kingdom, Ireland, North America, and Commonwealth states in Asia, Oceania, and Africa. Civil law examples will include Germany, France, Spain, and Poland in Europe, Japan and Korea in Asia, Mexico and Brazil in Latin America, Morocco in Africa, and Israel. As well as contrasts, similarities will be noted; these are often between states in the same legal family.

C.  Origins

1.  England

7.  The term ‘privilege’ is derived from privus (own) leges (laws) of the legislature. As early as 1340, the privilege against arrest was asserted (Bryant 214–215) and a claim in support of free speech was made by the House of Commons in 1455 (Evans and Jack 142–143; Maingot 274–275). By the sixteenth century, the practice whereby the Speaker of the House of Commons claimed such rights at the beginning of the session became firmly established (Elsynge 175). Each house of parliament had its own privileges, and in bicameral systems (bicameralism) each chamber is responsible for the protection of its privileges and those of its members. In the absence of legislation and a written constitution, the legal basis for these privileges in England is the combination of constitutional practice and recognition by the courts of a species of law called the lex et consuetudo parliamenti (the laws and customs of parliament)—now simply called the law of parliament.

2.  Other Countries

8.  While English common law was taken by British settlers to their colonies, the lex et consuetudo parliamenti was not included in this body of law. And while colonial assemblies claimed privileges similar to those of the Westminster parliament, especially in the American colonial assemblies (Clarke), the formal position established in 1842 was that colonial legislatures only had such privileges and immunities as were necessary to their proper functioning (Kielley 88). It was only after self-government was granted in the nineteenth century that the restriction on the range of privileges was lifted (Fielding 610).

9.  In the case of France, while influenced by the English example, the adoption of immunity was the result of a declaration on 23 June 1789 that ‘the person of each deputy shall be inviolable’ (Ponceau 54; Hardt 132–164), and reiterated in the Constitution of France (Constitution of France: 1791, Ch 1, Section IV, Arts 7–8 (Fr)). Successive constitutions of France included provisions on immunity (Constitution of France: 1958 Art. 26 (Fr); Hardt 132–143).

10.  The French example in turn influenced the 1849 German Constitution (Hucko (101–102). Later constitutions of 1871, 1919 and 1949 carried on the German tradition of putting the immunities of deputies in the constitution (Hucko 129, 157–158, 211). Art. 46 of the Basic Law of Germany continues this tradition. There is evidence in the Netherlands that immunities were claimed early (Hardt 207–226), but, like the rest of the world, they are largely the creature of the democratic age and of written constitutions (Constitution of Poland, Art. 105 (Pol); Constitution of South Korea, Arts 44–45 (S Kor)).

D.  Rationale

11.  The rationale for parliamentary privilege is that it was intended to safeguard the legislature’s ability to work, and to avoid legislative decisions being influenced by extraneous motives and pressures (Rules of the German Bundestag, Annex 6, Rule 4 (Ger)). The context in which this principle operates has changed over time. In pre-democratic times the pressures came from the monarch, who might punish members of the parliament for their actions or speeches, and later by stacking the legislature with their nominees. In democratic regimes the pressures—especially in parliamentary systems—no longer come from the head of state but from external political forces and lobbyists. In Germany, resistance to external influences is reinforced by the rule that members may not take on outside salaried occupations, nor may they receive outside money (Members of the Bundestag Act, Part 10, Art. 44a (Ger)). This is now the position ofthe United Kingdom (House of Commons, Code of Conduct: 17 March 2015, Clause V, paras 11–12 (UK); Parliamentary Standards Act: 2009, s 8 (UK)) and of France, which prohibits incompatabality of office, ie conflicts of interest (Le Statut du député 18–29 (Fr)). In most states, the function of immunity is limited to the duration of membersterm in the legislature and only in relation to their legislative duties.

12.  Once, the emphasis was on maintaining the dignity of the legislature and its members (Anson 141), but modern statements on purposes refer to the upholding of the integrity of the House, its committees and members in order to secure the independence of these entities in the performance of their functions (Rules of the German Bundestag (Ger), Annex 6, Rule 4; Parliamentary Privilege Act: 2014, s 7 (NZ)). As the Irish Constitution points out, immunity protects parliamentfrom any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties (Irish Constitution, Art. 15 (1)).

13.  An additional reason for immunity is to ensure that the separation of powers is preserved, as this is essential to the proper functioning of a legislature in a democracy (Bishara 53). This is a particularly a strong argument in states with a written constitution (Chafetz 10–19).

E.  Legal Sources

14.  In most constitutional systems the foundation of privilege or immunity is to be found in the national constitution (Constitution of Ireland, Art. 15 (10) (Ir); Constitution of India, s 105 (India)) or in many federal systems the constitution of a state (Huefner 308–318; Constitution of the Land of Brandenburg, Arts 57–58 (Brandenburg/Ger)) or a province (Constitution Act: 1996, Chap 66, ss 50–51 (British Columbia/Can)). One variant on this is also provided by the national constitution of India, that authorizes a subordinate legislature to make its own rules on the matter (Constitution of India, s 208 (India)).

15.  These provisions vary in detail and structure.

  1. a)  The usual pattern is to state in the constitution that the legislature may make a law specifying these privileges. This is common in many systems where a special statute on the matter has been made (Constitution Act: 1867, s 18 for Canada (UK); Constitution of Australia, s 49 (Austl)).

  2. b)  The legislature may write procedural rules, generally to regulate the business of the legislature that includes matters of immunity or privilege (Constitution of the United States, Art. 1, §5 (US); Constitution of Spain, s 72 (1) (Spain); Constitution of Sierra Leone, s 94 (4) (Sierra Leone); Basic Law of the Knesset: 1958, s 19 (Israel)). Such rules cover legislative procedures generally but also include matters of privilege or immunity (Rules of the House of Representatives, 114th Congress: 6 January 2015, Rule XI (US)).

  3. c)  In other cases, some of the key privileges or immunities are actually written into the constitution. This is a feature of civil law systems, as in the Basic Law of Germany, Art. 46 (Ger) and the Constitution of France, Art. 26 (Fr), but is also the case in the Constitution of the United States, Art. 1, s 6 (US). This gives these provisions special constitutional status, in that they may only be changed by the normal processes of constitution amendment.

  4. d)  Many Commonwealth states have a hybrid system, in which the starting point is the privileges of the House of Commons in the United Kingdom unless and until a local statute is passed (Constitution of Australia, s 49 (Austl); Parliament (Privileges, Immunities and Powers) Act Cap 317, s 3 (Sing); Prescription of Parliamentary Privileges Immunities and Powers Act: 2007, s 2 (Solom Is)).

  5. e)  In contrast, modern statutes in several Commonwealth states retained a mixed system with their own statutes on privileges and immunities, but where that statute does not cover a matter, resort may be had to the position in the House of Commons of the United Kingdom on a specific date (Parliamentary Powers and Privileges Act: 1964, s 3 (1) (Papua NG); Parliamentary Privilege Act: 1987, s 5 (Austl); Parliamentary Privilege Act: 2014, s 8 (1) (NZ)).

  6. f)  Many states have built up a system of rulings by presiding officers or even by a special department (eg the Office of the Parliamentarian of the United States Houses of Congress (US)) and these have been gathered into official collections (Erskine May 181–280; Nickels and Carr 9–12; Hanley).

  7. g)  Case Law is particularly important in those states, such as the United States and the United Kingdom, that lack a general privileges statute (Erskine May 281–306; Chavetz).

  8. h)  Codes of Conduct for legislators are now common and often arose in response to scandals concerning the behaviour of legislators (Codes of Conduct in Australian and Selected Overseas Parliaments (Austl); Rules of Procedure for the German Bundestag, Rule 18 and Annex 1 (Ger); House of Commons, Code of Conduct: 17 March 2015 (UK)).

F.  Content

1.  Immunities

(a)  From Arrest

(i)  Common Law Systems

16.  This immunity in common law systems is limited to civil arrest (National Assembly (Powers and Privileges) Act, Cap 6, s 5 (Kenya); Constitution of the State of California, Art. 4, §14) and only during the session of the legislature. In practice, with the abolition of civil arrest during the twentieth centurythis is now very rare, although it was common in the centuries before 1900. A member may be arrested and tried for criminal offences, but the trial cannot commence while the legislature is in session or on a sitting day (Parliamentary Privilege Act: 1967, s 14 (1) (Austl); Constitution of the US, Art. 1, §6 (US)). If a member is convicted then this is grounds for their disqualification from the legislature and may also be a basis for their expulsion. In contrast to civil law systems, there is no immunity in most common law systems for criminal acts such as bribe taking (United States v Brewster 426). In Australia, a Commonwealth statute permits the deprivation of a member’s superannuation (pension) in the event that they are convicted of serious offences (Crimes (Superannuation Benefits) Act: 1989 (Austl)).

17.  In contrast, the immunity from arrest and prosecution for criminal matters in some American states is limited and does not apply to treason, felony (ie serious offences) orbreaches of the peace (Constitution of Alabama, §56 (Alabama/US)). This means, however, that representatives cannot be arrested for lesser offences eg driving offences.

(ii)  Civil Law Systems

18.  In many non-common law systems, a member cannot be arrested unless found in flagrante delicto, nor may they be indicted or tried without the authorization of the respective house (Basic Law of Germany, Art. 46 (2) (Ger); Constitution of Spain, Art. 71 (2) (Spain); Constitution of Poland, Art. 105 (2) (Pol)) unless the accused consents (ibid Art. 105 (4); Constitution of South Korea, Ch III Art. 44 (1) (S Kor)). Under the Constitution of Mexico, (Constitution of Mexico, Title IV, Art. 109 (Mex)) the chamber first investigates the matter and if it finds that there are grounds to proceed it then consents to hand over the matter to the ordinary courts. However, the Constitution of Mexico, (Constitution of Mexico, Title IV, Art. 114 (Mex)) confers no immunity on any public officer, and this includes Senators and Deputies (ibid Art. 108), for claims of a civil character.

(b)  Free Speech in the Legislature

(i)  Common Law Systems

19.  Immunity is absolute in common law systems.A member may not be prosecuted for anything they say within the chamber and they also have absolute immunity from civil actions in defamation (Legislative Houses (Powers and Privileges) Act: 1953, s 3 (Nigeria); Parliament (Powers and Privileges) Act: 1978, s 4 (Sri Lanka)). However, this immunity only applies to words spoken in the chamber. Remarks made by a member of the legislature outside the chamber, even if the member repeats what was said within the chamber, are not protected (Hutchinson 127; Beitzel).

(ii)  Civil Law Systems

20.  In contrast, immunity in civil law systems varies. The Constitution of France only provides immunity from criminal proceedings in respect of words spoken in the exercise of deputies’ functions (Constitution of France, Art. 26 (Fr)), although learned commentary has argued that this immunity extends to civil as well as penal (criminal) matters (Schenberg, Ch II, 69).Immunity in Poland applies to all activities within the legislature itself (Constitution of Poland, Art. 105 (1) (Pol)).

21.  German law, in contrast, has created an exception to this broad immunity. For example, in both Art. 46 (1) of the Basic Law of Germany (Ger) and Art. 57 of the Constitution of the Land of Brandenburg (Ger), actions for defamatory insults by a member of the legislature are permitted.

22.  A much wider exception to this immunity applies in Morocco, where it does not extend to questioning the monarchy or Islam (Constitution of Morocco, Title IV, Art. 64 (Morocco); Islamic constitutionalism).

23.  In Israel, immunity does not extend to statements by members that incite racism, terrorism against Israel or against Jews, or that reject the democratic nature of the state (Navot 110).

(c)  Nor May Any Court Question Anything Said in the Legislature

(i)  Common Law Systems

24.  One source of legislative independence is the principle, whichoriginated in the Bill of Rights (1689),Art. 9 (Eng) and was continued elsewhere (Constitution of the US, Art. 1, §6 (US); Constitution of Sierra Leone, s 98 (Sierra Leone); Parliamentary Privilege Act: 2014, ss 3 (2) (c), 9 (NZ)), that the courts may not question anything said in the legislature. This has given rise tomuch debate in the courts as to the precise scope of immunity from review; some states have attempted to specify this (Parliamentary Privilege Act: 2014, ss 9–16 (NZ)), while most have left it alone.

(ii)  Civil Law Systems

25.  Given the constitutionally entrenched nature of freedom of expression in the legislature and in general (Basic Law of Germany, Art. 5 (Ger)), and in the course of official duties, it follows that normally a court cannot interfere with this immunity. However, an issue might arise as to its precise boundaries.

26.  Other immunities in common law systems include immunity from jury service (Constitution of Sierra Leone, s 102 (Sierra Leone)).Nor can a member be summoned as a witness while the legislature is in session (Constitution of Sierra Leone, s 101 (Sierra Leone)).

2.  Powers

27.  Legislative power covers both the ability of the legislature to regulate its own procedures and discipline, and also the ability of the legislature to summon witnesses and secure evidence for the purposes of committee functions.

(a)  To Summon Witnesses

28.  A major function of a modern legislature is to call for evidence before committees, to aid in the inspection of existing policies and laws, and assist in the formulation of new laws. All legislatures have the power to call witnesses, compel testimony, and order the production of documents. In such cases, while it is a contempt of parliament to refuse to appear or answer questions, witnesses are also accorded the same immunities and privileges as witnesses in a court of law (Parliamentary Evidence Act 1901 (Austl); House of the Oireachtas (Inquiries, Privileges, and Procedures) Act 2013 (Ir)).

29.  In civil law systems, there are also extensive and important legislative committees, which may also call witnesses and conduct public hearings (Rules of the German Bundestag, Rule 70 (1); Power 33). It is unclear whether the immunities apply to the witnesses or civil society representatives who appear before such committees—at face value they apply only to deputies.

(b)  To Expel Members

30.  Historically, the legislature could expel members despite their having been duly elected (Constitution of the US, Art. 1 §5 (US); House of Lords (Expulsion and Suspension) Act 2015, s 1(1)(a) (UK)). The power to expel no longer exists in the Federal (Commonwealth) Parliament of Australia or in New Zealand (Parliamentary Privilege Act 1967, s 8 (Austl); Parliamentary Privilege Act: 2014 (No 58); s 23 (NZ)). Japan takes an intermediate position, whereby the Diet may expel a member, but if they are re-elected, the member may not be expelled again (Diet Law, Art. 123 (Japan)). There is no power to expel in civil law systems. However, on 20 July 2016, the Knesset of Israel passed a law to permit the expulsion of a member who backs armed struggle against the State of Israel or incites racial hatred. The decision to expel a member requires a vote of 90 out of the 120 members to succeed, and may be challenged in the Supreme Court (Newman).

(c)  To Suspend Members

31.  This is a power additional to expulsion in those states where that power also exists (National Assembly (Powers and Privileges) Act, Cap 6, ss 10 (7), 11 (Kenya)). The power to suspend is the most serious sanction that may be imposed on members of the French National Assembly (Constitution of France, Art. 73 (Fr); Rules of Procedure, Art. 70 (5) (Fr)).

32.  The further consequence that a member subject to suspension may also have their parliamentary allowances cut for the duration of the suspension is one issue addressed in the Constitution of France, Art. 76 (Fr), and in the Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act: 2004, s 12 (5) (g) (S Afr).

(d)  To Fine

33.  Historically, the British parliament could also impose a fine on persons found in contempt although in practice this is now rare, even though the power remains in several Commonwealth states (Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act: 2004, s 12(5)(f) (S Afr); Parliamentary Privilege Act: 2014, s 22 (NZ)).

(e)  To Censure or Reprimand

34.  This is now the most common punishment by a legislature formembers who breach the rules of the institution, and is found in all systems as part of the internal discipline of the institution (Constitution of France, Arts 73–75 (Fr); Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act: 2004, s 12(5)(b) (S Afr)).

(f)  To Imprison

35.  Although provided for in the United States and occasionally exercised (Jurney 148–149), the power of common law legislatures to imprison is now very rarely exercised and likely to provoke a public outcry if exercised in the twenty-first century. The last person imprisoned by the British House of Commons was in 1880.In Australia, the Commonwealth parliament has only exercised this power once in 1955, and no New Zealand parliament has ever imprisoned anybody. There is no penal power in civil law systems, though if members of the legislature commit offences the assembly may inform the public prosecutor who may then take action under the general criminal law (Rules of Procedure of the National Assembly, Art. 78 (6) (Fr)).

G.  Temporal Limits

36.  In common law systems, powers and immunities generally operate only in respect of activities within the precincts of the legislature. Questions have arisen as to what these are. Some states have specifically defined the precincts (Parliamentary Precincts Act: 1988 (Austl); Powers, Privileges and Immunities of Parliament and Provincial Assemblies Act: 2004, s 2 (S Afr)).

37.  However, one exception to the precincts rule is the practice of legislative committees holding hearings outside the main legislature building. In such cases, immunities and privileges attach to these proceedings, either by extension of the rule that these are also proceedings in parliament, or by virtue of special legislation (Parliamentary Powers and Privileges Act: 1964, s 13 (Papua New Guinea); Legislative Council (Powers and Privileges) Ordinance, Cap 282, s 2 (HK)).

38.  In contrast, civil law states do not tie immunity to the location of the legislature, but allow immunities to apply outside the legislature as long as the activity is connected with the functions of the legislature (Knesset Members Immunity, Rights and Duties Law of 5711/1951, s 1(a) (Isr)).

H.  Waiver

39.  Privileges and immunities exist to support the legislature but may be claimed by its members. It seems clear that the house may not waive an immunity or privilege in states where privileges are incorporated into statutes, since a legislature cannot change a law by a mere resolution (Bradlaugh 284; Odger’s Australian Senate Practice 93), nor can a legislature waive a privilege conferred by the constitution, unless such waiver is also permitted by the constitution itself (Constitution of Poland, Art. 105 (4) (Pol); Rules of the German Bundestag, Annex 6, Rule 1 (Ger)).

40.  A legislature not constrained by a constitutional prohibition may, by special legislation, waive a particular privilege or immunity for a specific purpose, such as to allow an inquiry to be made, even in respect of matters spoken in the legislature (Arena 431; Re House of Commons 490; Hamilton 408). The practice and procedure for doing so varies with the constitutional system, and the details are helpfully set out in the Venice Commission’s Report on The Scope and Lifting of Parliamentary Immunities (21–22 March 2014). Newer states have legislated for this in great detail (Members of Parliament and Senator’s Mandate Act 1996, Arts 7b–8 (Pol)).

41.  In non-common law systems, waiver does not arise as such, but the legislature may accomplish the same result by lifting an immunity if requested to do so (Constitution of France, Art. 26 (Fr); Parliamentary Immunity 2–3 (Ger)).

I.  Breach and Enforcement

42.  Common law legislatures have the power to find both members and citizens in contempt of parliament. This power was originally derived from the notion that parliament was a court and had the same powers of a court to enforce its orders, including fining and imprisoning persons found in contempt. By the nineteenth century the court theory was abandoned (Bradlaugh 285) and now has no place in most systems based on the separation of powers. In contrast, some states designateby law their legislatures as courts, for the purposes of judging breaches of privilege (House of Parliament (Privileges and Powers) Act: 1952, s 4 (Malay))—this is a noteworthy feature of Canadian provincial legislation (Legislative Assembly Act, Cap L-7, s 31 (Prince Edward Island) (Can)).

43.  Many but not all states have defined categories of contempt by legislation, and in newer statutes these lists are often long (Parliament (Powers and Privileges) Act: 1978, s 22 and Schedule (Sri Lanka)). The punishment for contempt includes the power to admonish or censure, inflict fines, suspend or expel members, and even imprison. The power to fine and imprison may be inflicted on members of the public for contempt, both in the parliament building and for conduct outside the legislature itself (Kilbourne 190). Technically, the term of imprisonment may be indefinite, although originally the term expired if the legislature was prorogued. Australia changed that rule in 1987 to state that the term would not expire in this manner (Parliamentary Privilege Act: 1987, s 7(1) (Austl)), and also set a maximum limit of imprisonment toa period of six months.

44.  Newer states have given up the power to punish directly and can no longer imprison, but offences against the assembly committed within the building are offences to be tried in the ordinary courts (National Assembly (Powers and Privileges) Act, Cap 6, ss 22–23 (Kenya); House of Representatives (Powers and Privileges) Act, Chap 2:02, s 10 (Trin and Tobago); Niue Assembly Privileges Act: 2013, ss 4(2), 8(2) (Niue)). Some states have a bifurcated system: they may punish for some offences itself but leave other offences to the ordinary courts (Parliamentary Privileges Act: 1891, ss 14–15 (West Austl) (Austl)).

45.  The power to impose fines and imprisonment on members of the public does not exist in civil law systems, though it is a power that may be exercised by the President of the Bundestag, for example, in order to discipline a member (Facts: The Bundestag at a Glance (German Bundestag, Public Relations Division, January 2016) 25 (Ger)).

J.  Evidence and Operation

46.  In those common law systems that retain a link to the position in the House of Commons of the United Kingdom, resort may be had to the journal of that House as evidence of the privileges in issue (Parliament (Privileges, Immunities and Powers) Act, Cap 317, s 3(3) (Sing); Powers and Privileges (Senate and House of Assembly) Act: 1969, Cap 8, s 19 (Bah)).

47.  In the case of other legislatures that have cut links to the House of Commons of the United Kingdom, the journals of their own legislature are used as evidence of the privilege or immunity in question (Constitution of the US, Art. 1§5 (US); Legislative Council (Powers and Privileges) Ordinance, Cap 282, s 21 (HK)).

48.  In practice, most legislatures have a committee on privileges that first considers the matter (Standing Orders of the House of Representatives: 2014, Chap 8, Rule 401 (NZ)) or, in the case of France, the Bureau of the House (Constitution of France, Art. 26 (Fr); Rules of Procedure of the National Assembly, Art. 74 (Fr)) whichexamines issues of immunity and generally reports to the whole House for final decisions and actions.

K.  Judicial Review

49.  At one time in England, the courts held that they had no knowledge of the law of Parliament and therefore could not adjudicate upon it. The modern position is that the courts should be respectful of the legislature (Prebble 332), but that the courts are competent to determine if a claimed privilege exists. Otherwise, parliaments could claim new privileges and expand the reach of existing privileges without restraint. On the other hand, once it is established that aprivilege exists, the merits of the decision by the legislature to decide that there had been in a particular case a breach of privilege, and the decision to punish, was a matter for the legislature alone (Fitzpatrick 162).

50.  In systems with a constitutional bill of rights, the matter is more complex, since the question has arisen as to the relationship between immunities and wider constitutional protections. Many immunities and powers appear to contravene a general right to due process, and seem to confer a judicial powers on the legislature when it punishes for contempt in violation of the separation of powers. However, courts in Canada have ruled that these powers are conferred by the constitution and thus not in conflict with it (Canada (House of Commons) 684–690). In contrast, the scope for review is greater in South Africa (De Lille para. 34), and other Commonwealth states with a written constitution, such as the Bahamas (Bahamas Methodist Church para.31) and Dominica (Sabaroche 596), where decisions of a legislature may be impugned if they conflict with the constitution. In the United States, a member of a State legislature cannot be excluded from the legislature if they exercise constitutionally protected speech outside the legislature (Bond 137).

L.  Criticisms

51.  There are three main criticisms of parliamentary privilege:

  1. a.  First, that it seems anomalous in a legal order where all citizens are equal before the law that some citizens, ie legislators, are accorded special privileges (Bishara 55; Wigley).

  2. b.  Second, that immunity may be used to shelter abuses by elected officials in civil law systems. Thus there is evidence in Brazil that a wide immunity from criminal proceedings during the period of a legislator’s term or mandate has been used to protect many deputies from serious charges (Constitution of Brazil, Art. 53 (Braz); The Economist (8 July 2010)). The assumption in most systems is that immunity will be used for acceptable public purposes, in this case, to aid the legislature in the conduct of public business, not to shield legislators from their wrongdoing. It is also assumed that the power of the legislature to lift or waive immunity will be exercised in egregious cases of wrongdoing. This is not an issue in common law systems as legislators do not enjoy immunity from the operation of criminal law.

  3. c.  Third, that some of the privileges are obsolete, including the power in common law systems to expel, and the power to exempt members from even minor breaches of the criminal law. The expulsion power could be incorporated into standard provisions on the disqualification of a member (Erskine May 33–45; Constitution of Malaysia, s 48 (Malay); The Representation of the People Act: 1951, ss 7–11 (India)). This is the position in Germany, for example, where there is no direct power to expel, but where the Federal Election Law of 1993, Art. 46 (Ger) provides for the loss of membership of the Bundestag on various grounds.

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