Parliament has power to discipline members

The perimeters of 'contempt' are nowhere defined and Parliament is the ultimate arbiter of what amounts to contempt of the House, writes Dr SHAD SALEEM FARUQI 

FREEDOM of speech during parliamentary proceedings is one of the most cherished principles of electoral democracies. The Federal Constitution safeguards this principle by providing in Article 63(2) that no person shall be liable to any court proceedings in respect of anything said or any vote given by him when taking part in proceedings of either House. State constitutions have similar provisions. 

This immunity from judicial process is broad enough to protect legislators against all civil and criminal proceedings. Thus, MPs and assemblymen cannot be sued or prosecuted for defamation, breach of official secrets, blasphemy, treason or any other crime provided the words or acts were part of “parliamentary proceedings”. 

There is only one exception to this special privilege. By a constitutional amendment in 1971, parliamentary proceedings were made subject to the law of sedition. 

The immunity is also of no avail against the power of each House to discipline its own members. If a parliamentarian is accused of abusing his freedom of speech or of committing contempt of the House, he may be investigated, tried and either convicted or acquitted by the House itself. 

This is what may happen to Bukit Gelugor MP Karpal Singh who has been referred by the Dewan Rakyat to its Privileges Committee. The charges against him relate to his persistent questioning of the validity of the oath-taking ceremony in Parliament on May 17. According to Karpal, failure of the MPs to raise their right hand while taking the oath of office means that they have not been properly sworn in. 

Members of the public are, understandably puzzled why a veteran parliamentarian should spend Parliament’s valuable time to raise an issue as trivial as this. Should a solemn ceremony in the storied halls of Parliament lose its validity simply because of a minor procedural infraction, if any? 

Equally, others are wondering why the extraordinary powers of the House to punish for contempt should be invoked in a matter as insignificant as this. Only the Dewan Rakyat knows the answer. Its discretion in the matter is absolute. 

The impending investigation and trial raise a number of constitutional issues that deserve scrutiny. 

Parliament’s contempt jurisdiction: Though Parliament is primarily a legislative institution, each House has the power under the Houses of Parliament (Privileges and Powers) Act 1952 to convert itself into the “High Court of Parliament” to try members or outsiders for breach of privilege or contempt. 

Definition of contempt: The perimeters of contempt have nowhere been laid down. The House is, therefore, the ultimate judge of what amounts to contempt. 

In the English Case of Junor (1957), a newspaper article criticising the generous petrol ration MPs were receiving in a time of scarcity was held to constitute contempt of the House. 

In the case at hand, Karpal may face the charge that he deliberately and unreasonably disrupted or delayed parliamentary proceedings; that he misled the House by supplying wrong information on the law; or that he failed to apologise for his conduct when asked to do so. 

Committee of Privileges: If a complaint of breach of privilege or contempt is made against a member or outsider, the House has the discretion to refer the matter to this committee. If the House is not in session, the Speaker has the power to vet the complaint before channelling it to the committee. 

It is an investigatory, and not an adjudicatory, body and has no power to make the final decision or impose any penalty. It reports to the House, which may or may not accept its recommendations. 

The committee consists of Tuan Yang di-Pertua as chairman and six members of the House. By tradition, the opposition is always represented on the committee. 

If the chairman or any members of the committee are the complainants or witnesses, then under the principles of natural justice, especially the rule against bias, they will have to disqualify themselves from the committee. 

Procedure: The committee is a quasi-judicial body and is, therefore, expected to operate in the spirit of openness, fairness and impartiality. However, it is not bound by the rules of civil and criminal procedure or the rules of evidence. It is the master of its own procedure. 

It has the power to send for persons, papers and documents. Defiance of its orders may amount to contempt of the House. 

Punishment: As part of its privilege jurisdiction, Dewan Rakyat has the power to reprimand, suspend or expel an MP. It may also order imprisonment of up to 60 days or a maximum fine of RM1,000. 

Judicial review: Can the courts interfere with Parliament’s exercise of its privilege jurisdiction? In the UK, the law is quite clear. Parliament is the master of its powers, privileges and procedures and is not amenable to judicial scrutiny. 

But in countries with written and supreme constitutions, with chapters on fundamental liberties and with provisions for judicial review, the situation is quite complex. In India, for example, conflicts between courts and Parliament on what amounts to breach of privilege and contempt are not unknown. 

In Malaysia, our Constitution directs judicial restraint. Article 63(1) states that the validity of any proceedings in either House of Parliament or any committee thereof shall not be questioned in any court. 

It is unlikely, therefore, that a court will ever examine the propriety or necessity of the House’s decision to refer an MP to the Privileges Committee. That is left to the wisdom of the House. 

The House’s decision on punishment is also unlikely to be subject to judicial scrutiny provided the penalty is in accordance with the common law and the Houses of Parliament (Privileges and Powers) Act 1952. 

Oath: Was the oath of office taken in accordance with the law? It is noteworthy that Article 59 and the Sixth Schedule to the Constitution does not prescribe the raising of the right hand. 

Perhaps in the labyrinths of the law known to Karpal, there is some other provision that prescribes it. Even if that were so, it is unlikely that the courts will nullify the entire ceremony on the basis of a trivial oversight. 

First, in administrative law, procedural violations do not always result in nullity if the procedure is held by the court to be merely directory and not mandatory. 

Second, Article 62(1) gives Parliament wide latitude to regulate its own procedure, subject to the Constitution and federal law. 

Third, UK courts have held that Parliament is not subject to the jurisdiction of the courts in the administration of that part of the law that has relevance to its own proceedings. Parliament is the ultimate interpreter and implementor of laws regulating its proceedings. 

It appears, therefore, that no issues of principle are at stake in this unnecessary controversy. If ever there was a mountain out of a molehill, this is it. 

Dr Shad Saleem Faruqi is Professor of Law at UiTM, Shah Alam