Parliamentary Privilege does not offer total immunity, says reknown lawyer cum MP, Zaid IbrahimTHE "close one eye" saga has once again made the headlines. This time the clash between the two parties has escalated with the Customs accusing the MP from Jasin of sending "threatening" text messages because the Customs Preventive Department is vehemently carrying out its mandate to stamp out corrupt practices.
Responding to this allegation, the parliamentarian claims that the text messages sent could not possibly be threatening.
Watching the skirmish as it unfolds I have to come to the defence of the Customs. Government agencies should be able to discharge their duties without fear or favour, and if they have done something wrong, any complainants, including the MP from Jasin, should lodge a report. If the complaint is about corrupt practices, it should be lodged with the Anti-Corruption Agency.
If it involves dereliction of duties, or negligence or anything relating to the discharge of the responsibilities of a public officer, the matter should be referred to the Chief Secretary to the Government.
There are proper channels to vent complaints. Sometimes Parliament is the best forum, especially where the issue concerned involves public policy. But Parliament is not the only forum or even the best forum to resolve issues affecting the public.
Complaining about a department head should not be done publicly or through Parliament.
If all and sundry matters, regardless of importance, are discussed in Parliament, the public may think MPs are publicity seekers.
The public may think MPs do not know when to shut up when they have nothing more to say.
The issue is not about freedom of speech or about parliamentary privilege, which I will allude to later; it is about making responsible statements and being accountable.
In the first place we must not suffer from a misconception of the applicability of parliamentary privilege and immunity in everything an MP voices in Parliament.
Parliamentary privilege and immunity is constitutionally enshrined in Article 63 and is universally accepted, though to varying degrees in different jurisdictions, as necessary protection to enable parliamentarians to carry out their functions. So what do these concepts mean?
The underpinning principle of "parliamentary privilege" is to preserve the freedom of speech and debate in Parliament to enable MPs to discharge their mandate, duties and responsibilities as the people’s representatives effectively.
Parliamentary immunity is an extension of parliamentary privilege whereby in exercising free speech in parliamentary proceedings, anything said or voted on by MPs is immune from judicial scrutiny, i.e. court proceedings, be it criminal or civil in nature.
This principle is derived from Britain’s Bill of Rights 1689 (Bill of Rights 1689 provides: "the freedom of speech in Parliament, in that proceedings in Parliament were not to be questioned in the courts or in any body outside Parliament itself"), which has been the cornerstone of parliamentary democracy since and has been an established norm in parliamentary proceedings of democracies. However, in Malaysia the extent to which both these notions apply are confined to only proceedings in the Houses of Parliament with the exception of Clause 4 of Article 63.
(Note: Parliamentary privilege is controversial because of its potential for abuse; a member can use privilege to make damaging allegations that would ordinarily be discouraged by defamation laws, without first determining whether those allegations have a strong foundation. In Australia, such abuses have earned Parliament the nickname of the "coward's castle" - a place from which a member can attack others, while enjoying immunity from such attacks.)
Therefore, anything said or action taken pursuant to any parliamentary issue external or outside parliamentary proceedings, i.e. the "threatening" text messages and "baseless allegations" made outside Parliament, is beyond the remit of the Committee of Privileges. In other words, if what an MP had done or said was wrong beyond the walls of Parliament, we can take action against him, and he cannot claim privilege.
This is where the party whip, in our case the Deputy Prime Minister, has to exercise the whip and talk to the relevant MPs who have uttered or have done things beyond the pale of proper conduct befitting a parliamentarian. Discipline and proper conduct can be enforced by the party whip. This is what a party whip is for, besides making sure Government backbenchers vote according to instructions.
Otherwise, we will continue to have MPs who will take a swipe at anyone as and when they please since they are not accountable, except when they repeat the assertion outside Parliament.
Interestingly, many people still want to know the outcome of the inquiry conducted by the Deputy Prime Minister on the Jasin MP for suggesting that the Customs "close one eye" on the duties payable on sawn timber imported by a company associated with him.
MPs are legislators and policy- makers but most importantly, they serve as the voice of the electorate and are held in high regard by the public.
Therefore, MPs must appreciate their position and understand that it is crucial that the public’s confidence in them does not attenuate but grows from strength to strength.
Incidents such as this, whether true or otherwise tarnish the image of MPs. Thus, they must be dealt with by the party whip.
There is no need for a new Code of Ethics or guidelines to control MPs as suggested by some MPs. We have more than enough rules. What we need is for people to understand the present rules and parliamentary constitutional practice. And where there are breaches or violations, actions must be taken against them, not selectively but fairly against all MPs.
* Datuk Zaid is the MP for Kota Baru.
Responding to this allegation, the parliamentarian claims that the text messages sent could not possibly be threatening.
Watching the skirmish as it unfolds I have to come to the defence of the Customs. Government agencies should be able to discharge their duties without fear or favour, and if they have done something wrong, any complainants, including the MP from Jasin, should lodge a report. If the complaint is about corrupt practices, it should be lodged with the Anti-Corruption Agency.
If it involves dereliction of duties, or negligence or anything relating to the discharge of the responsibilities of a public officer, the matter should be referred to the Chief Secretary to the Government.
There are proper channels to vent complaints. Sometimes Parliament is the best forum, especially where the issue concerned involves public policy. But Parliament is not the only forum or even the best forum to resolve issues affecting the public.
Complaining about a department head should not be done publicly or through Parliament.
If all and sundry matters, regardless of importance, are discussed in Parliament, the public may think MPs are publicity seekers.
The public may think MPs do not know when to shut up when they have nothing more to say.
The issue is not about freedom of speech or about parliamentary privilege, which I will allude to later; it is about making responsible statements and being accountable.
In the first place we must not suffer from a misconception of the applicability of parliamentary privilege and immunity in everything an MP voices in Parliament.
Parliamentary privilege and immunity is constitutionally enshrined in Article 63 and is universally accepted, though to varying degrees in different jurisdictions, as necessary protection to enable parliamentarians to carry out their functions. So what do these concepts mean?
The underpinning principle of "parliamentary privilege" is to preserve the freedom of speech and debate in Parliament to enable MPs to discharge their mandate, duties and responsibilities as the people’s representatives effectively.
Parliamentary immunity is an extension of parliamentary privilege whereby in exercising free speech in parliamentary proceedings, anything said or voted on by MPs is immune from judicial scrutiny, i.e. court proceedings, be it criminal or civil in nature.
This principle is derived from Britain’s Bill of Rights 1689 (Bill of Rights 1689 provides: "the freedom of speech in Parliament, in that proceedings in Parliament were not to be questioned in the courts or in any body outside Parliament itself"), which has been the cornerstone of parliamentary democracy since and has been an established norm in parliamentary proceedings of democracies. However, in Malaysia the extent to which both these notions apply are confined to only proceedings in the Houses of Parliament with the exception of Clause 4 of Article 63.
(Note: Parliamentary privilege is controversial because of its potential for abuse; a member can use privilege to make damaging allegations that would ordinarily be discouraged by defamation laws, without first determining whether those allegations have a strong foundation. In Australia, such abuses have earned Parliament the nickname of the "coward's castle" - a place from which a member can attack others, while enjoying immunity from such attacks.)
Therefore, anything said or action taken pursuant to any parliamentary issue external or outside parliamentary proceedings, i.e. the "threatening" text messages and "baseless allegations" made outside Parliament, is beyond the remit of the Committee of Privileges. In other words, if what an MP had done or said was wrong beyond the walls of Parliament, we can take action against him, and he cannot claim privilege.
This is where the party whip, in our case the Deputy Prime Minister, has to exercise the whip and talk to the relevant MPs who have uttered or have done things beyond the pale of proper conduct befitting a parliamentarian. Discipline and proper conduct can be enforced by the party whip. This is what a party whip is for, besides making sure Government backbenchers vote according to instructions.
Otherwise, we will continue to have MPs who will take a swipe at anyone as and when they please since they are not accountable, except when they repeat the assertion outside Parliament.
Interestingly, many people still want to know the outcome of the inquiry conducted by the Deputy Prime Minister on the Jasin MP for suggesting that the Customs "close one eye" on the duties payable on sawn timber imported by a company associated with him.
MPs are legislators and policy- makers but most importantly, they serve as the voice of the electorate and are held in high regard by the public.
Therefore, MPs must appreciate their position and understand that it is crucial that the public’s confidence in them does not attenuate but grows from strength to strength.
Incidents such as this, whether true or otherwise tarnish the image of MPs. Thus, they must be dealt with by the party whip.
There is no need for a new Code of Ethics or guidelines to control MPs as suggested by some MPs. We have more than enough rules. What we need is for people to understand the present rules and parliamentary constitutional practice. And where there are breaches or violations, actions must be taken against them, not selectively but fairly against all MPs.
* Datuk Zaid is the MP for Kota Baru.
1 comment:
well said! of course, anyone attempting to *gasp!* enforce anything in Malaysia is essentially going up against a brick wall, or at least will be swimming against the current... because enforcement simply does NOT happen under normal/routine situation. Which is really sad. I too support Kastam - I suppose it's better late than never to start enforcing their own rules. They had just better be enforcing for real, and consistently! because CONSISTENCY [or lack thereof] is yet another flaw in how Malaysia functions..
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