Abolish Parliamentary Privilege

Parliamentary privilege grants certain legal immunities for Members of Parliament to allow them to perform their duties without external interference. The problem is, once a name of any ordinary citizen is revealed under the protection of privilege and in an undesirable, unjustified or fabricated context, it will be picked up by the media and commentators and it will spread like wildfire on Twitter and other social media.

Former Prime Minister Joseph Muscat said that parliamentary privilege, immunity should no longer be in place in Parliament, especially when it is abused by MPs. Such an opinion has now also been adhered to and appealed for by Speaker Anglu Farrugia.

Members of Parliament who exploit parliamentary privilege to breach court injunctions, for example, are undoubtedly undermining the rule of law. It is the principle of absolute freedom of speech enjoyed by parliamentarians – which enables the media to report what is said in Parliament – against the slower-moving, legal priorities of the courts.

Unless and until the legislator decides to abolish Parliamentary Privilege, I suggest that a solution in future might involve the Speaker having the authority and power of removing and striking off any prejudicial comments from parliamentary record, thus depriving the media of the legal protection in reporting it.

Parliamentary privilege might be important, but like any power which is extremely important, it is open to abuse. Parliamentary privilege prevents legal (civil or criminal) action being taken against MPs, witnesses giving evidence to committees or anyone else involved in the “proceedings of parliament”. The most significant effect of parliamentary privilege is that members of Parliament cannot be sued or prosecuted for anything they say in debate in the houses. It enables freedom of speech and freedom of reporting but it is something that has to be exercised responsibly, which, unfortunately, does not appear to have been so exercised lately in Malta.

Members of Parliament who exploit parliamentary privilege to breach court injunctions, are undoubtedly undermining the rule of law.

Those operating within Parliament are granted “absolute privilege,” which means they are exempt from any action even if, for example, a statement is made with malice.

But if one MP stands up in Parliament and lets fly on another MP, that second MP can complain to the Speaker by raising what is called a breach of privilege. The speaker then considers the matter privately.

The Speaker might act on the matter if he or she believes the issue has been raised at the first available opportunity and there is some substance in it (the technical term being that a prima facie case exists).

So what if someone in Parliament talks trash about you? There are options for members of the public. But it gets a little complicated. Citizens can seek to get a right of reply if they think their reputation has been damaged by a Member of Parliament. But this option is specifically for people who have no legal redress and who have no forum for making a widely publicised rebuttal. So, it cannot be used on behalf of corporations or other organisations. If someone wanted to take it further, or go to the media to publish their right of reply, he or she would be able to but they would not have the same “freedom of speech”, they would have to be careful in their response that they do not defame the Member of Parliament.

The balance between fundamental rights and parliamentary privilege must be re-examined. Parliamentary privileges originated during the long struggle for democracy and citizen’s rights in Britain, between a monarch and Parliament as kings used to get members who spoke or were likely to speak against the king arrested. Today, our legislators get citizens and journalists arrested. There should be a debate held about the need for codifying privileges and giving primacy to a citizen’s right to free speech over legislative privileges.

Why shouldn’t our legislators’ freedom of speech, like the freedom of speech of citizens, be subject to the sovereignty and integrity of the nation, public order, friendly relations with foreign states, incitement of an offence or defamation? Even if one may reluctantly concede such a privilege to them in the interest of the smooth conduct of the House, why should there be the power to send people to jail for breach of privileges? Our legislators have the power to be the sole judges to decide what their privileges are, what constitutes their breach, and what punishment is to be awarded in case of breach. Is this not too wide a power which clearly impinges on constitutionalism, i.e. the idea of limited powers?

It is in this sense that I feel that Chapter 113, the House of Representatives (Privileges and Powers) Ordinance, should be revisited.

As things stand, our Members of Parliament may say whatever they like, no matter how offensive their language may be to the sentiments of other people, who are strangers to the House. Members of Parliament are always protected by this law from libel or from any other act of molestation. Another privilege lies in the fact that Parliament may constitute itself into a Supreme Court. Parliament does this, when there arises the need to adjudicate on breaches of its own privileges even though this aspect had been toned down by a judgement delivered by the European Court of Human Rights in Strasbourg in 1994.

Defenders of the status quo will argue that this system has served us well over the years, that our parliamentary traditions have combined stability and flexibility and that we should not cast away in a minute what has taken generations to build. Yet It is impossible to practice parliamentary politics without having patience, decency, honesty, politeness and courtesy. Proven abuse of parliamentary privilege runs counter to that practice.

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