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Opinions of Monday, 31 July 2017

Columnist: Kwaku Badu /k.badu2011@gmail.com/

The parliamentary privilege is antiquated and monstrously unjust

Much as the parliamentarians privileges and concessions are grounded in the Constitution of Ghana, it would be somewhat sophistic for any person or group of persons to contend that the parliamentarians immunity from arrest without the Speaker of Parliament’s prior knowledge and permission, is not dowdy and incommodious in the fight against corruption.

Per the parliamentary privilege, a parliamentarian is immune from court summons or arrest without prior knowledge and a permission by the Speaker of Parliament. Controversial it might seem, some optimists however argue in favour of the provision.

I, however, belong to the schools of thought that vehemently contend that the parliamentary privilege is outmoded and must be expunged and tossed into dustbin accordingly.

For after all, aren’t we all equal before the law? Yes, no one is above the law.

In so far as the controversial concession was inserted in the constitution so as to remedy needless obstructions and to allow the parliamentarians to go about their duties seamlessly, the provision somehow gives a section of the population an unfettered freedom.

Indeed, we acknowledge that our representatives in parliament are undertaking very important role in the nation building. But the all-important question is: are their role in the nation building more important than that of a farmer, a teacher, a doctor among others?

Bizarrely, the defenders of the seemingly antiquated provision contend that without the immunity, the parliamentarians may be prevented from their important duty through apparent suppositious civil and criminal law suits.

In fact, such a view point is not irrational. But my bone of contention is that the parliamentarians are not the only relevant actors in the nation building who require special protection in their line of duty.

For argument sake, if the law excuses a suspected parliamentarian from arrest on his/her way to work, whilst at work or on his/her way back from work, the law might as well make room for an equally important contributors such as farmers, teachers, doctors among others.

Why must we allow a section of the population to perpetrate criminalities and then hide behind the law?

Let us face it, the parliamentary privilege was never intended to help parliamentarians escape the criminal law, but it was rather inserted in the constitution to give parliamentarians immunity against gratuitous civil suits for defamation whilst undertaking their parliamentary duties.

Let us however remind ourselves that the provision was taken from the British parliamentary privilege and transposed and given meaning in our constitution.

The crucial question however is: do the originators of the apparent controversial provision still find it prudent and expedient?

A few years ago, three Labour MPs were charged with false accounting over their parliamentary expenses claims.

However, they deny the offences and tried their level best to avoid a criminal trial by invoking the 1689 Bill of Rights which gives oxygen to parliamentary privilege.

Needless to say that the parliamentary privilege stops MPs and peers from being sued for defamation.

So how on earth then would the MPs try to invoke parliamentary privilege in a criminal prosecutions under the Theft Act?

Clearly, they were seeking to hide behind the parliamentary privilege, which in my view, was a needless breach of the privilege.

But despite their earlier refuge in the parliamentary privilege, the judge found them guilty and sentenced them into prison. Their sentences ranged from 18 months to 12 months.

It is worth emphasising that the modern understanding of parliamentary privilege relates to immunity from litigation for words spoken in the House of Commons.

And more so it has a wider historical meaning, encapsulated in the evolution of British constitution which can be open to legal interpretation.

The origins of parliamentary privilege

The parliamentary privilege can be traced back to the English Civil War when Parliament was fighting for the right to self-governance and independence from the monarchy.

However, it was not until 1689 when the Bill of Rights established the rights of parliament after the so-called Glorious Revolution that it became enshrined in law.

Take, for instance, Article 9 of the Bill of Rights states that "the freedom of speech and debates or proceedings in parliament ought not to be impeached or questioned in any court or place out of Parliament".

Back then, the law was subject to the whims and caprices of the King. Suffice it to state that it was the interference from the sovereign that Parliament sought to rid itself. Parliament held MPs to account by its own strict laws which ran side by side with the criminal and civil courts. Needless to say that back then, the rule of parliament was absolute.

Are the rules of parliamentary privilege changed?

Apparently, the twilight of the monarchy allowed Parliament to surrender some of its jurisdiction to the courts.

Consequently, MPs accused of criminal offences are no longer dealt with by the authorities of the House of Commons and instead face the full force of the law.

Take, for example, since 1979, not less than 10 MPs have been sent to prison, usually for not paying fines incurred when they were conducting political protests in Northern Ireland.

However, parliamentary privilege still grants MPs immunity from being arrested on civil matters within the grounds of the Palace of Westminster.

I could not agree more with the idea of protecting parliamentarians whilst going through their normal day-to-day activities at the Parliament.

In recent times, MP Damian Green was arrested by the Metropolitan Police at his constituency home on suspicion of "aiding and abetting misconduct in public office" and "conspiring to commit misconduct in a public office".

However, after the MP Damian’s arrest in December 2008, the Speaker of Parliament back then, Michael Martin, explained his actions to the Commons, telling MPs that parliamentary privilege has never prevented the operation of the criminal law.

He alluded to the Joint Committee on Parliamentary Privilege which in its report in 1999 said that the precincts of the House are not and should not be "a haven from the law (Source: independent.co.uk).”

In most jurisdictions, though, the laws are administered equitably. Indeed, everyone could face the laws without any recourse to their status in society.

Take, for example, not long ago, the Pakistani Prime Minister, Nawaz Sharif, was forced to resign following his disqualification from office by the country’s top court.

The Supreme Court of Pakistan dismissed Mr Sharif after a damning corruption probe into his family wealth.

The investigative panel claimed his family was unable to account for its vast wealth, leading to the court to order a criminal investigation (guardian.co.uk, 28/07/2017).

Moreover, a few months ago, former Brazilian president, Luiz Inacio Lula Da Silva, who has been cited as the most famous president in Brazil’s contemporary history, was sentenced to nine years and six months in jail after being found guilty on corruption and money-laundering charges (Source: guardian.co.uk, 12/07/2017).

And in recent times, the controversial South Korean president, Park Geun-hye, found herself in a wide-ranging corruption and cronyism scandal, which culminated in her removal from office in March 2017.

President Park Geun-hye and her long- time confidante, Choi Soon-sil, were accused of conspiring to pressure companies, including Samsung, to donate large sums of money to two non-profit foundations set up by Choi.

Choi was accused of using the money for personal gain, which she denied. However President Park admitted behaving “naively”, but denied coercing companies.

President Park was also accused of giving Choi an unlawful access to state affairs and allowing her to influence policy, including Seoul’s stance on North Korea’s nuclear weapons programme (The Guardian 2017).

In sum, the parliamentarians immunity from arrest or court summons is archaic and inequitable. So let us do away with it. Let us amend or expunge the seemingly irrational provision and replace it with innovative and expedient law.