Parliamentary privilege: Retain or abolish it?

Some have been clamouring for its total abolition. Others want to curb the abuse of parliamentary privilege by setting limits. Speaker Anglu Farrugia has long been emphasising the need for a parliamentary procedure that would offer recourse to individuals who fall victim to the abuse.

In May 2017, former Prime Minister Joseph Muscat had pledged to remove parliamentary privilege if re-elected. He never got down to removing it.

Originally, parliamentary privilege was important in enabling parliamentarians to carry out their duties. Today, however, its coverage does not need to be wider than necessary to underpin key democratic processes. Nor can the impact on public opinion of perceived abuse of privilege be disregarded.

The use of parliamentary privilege creates the potential for parliament and parliamentarians to be seen as exclusive, arrogant or out of touch, or as inclusive of the community and responsive to community concerns.

We all remember how Nationalist MP Adrian Delia was alleged to have exploited parliamentary privilege to serve the interests of his clients, rather than the people he was elected to represent, by filing parliamentary questions about a public tender in which a client of his was involved. Indeed, independent MP Clayton Bartolo had requested a standards investigation, claiming Delia had misused parliamentary privilege to serve his private legal work.

Yet, the dark side of the impact of parliamentary privilege arises from concerns about the supposed abuse by members of parliament to defame people unjustifiably. Other instances of supposed misuse of parliamentary privilege arise in all jurisdictions with reasonably regular frequency and all attract a great deal of media attention and outrage.

Incidents such as these lead to calls for parliamentary privilege to be wound back or restricted. These calls tend to reflect a perception that parliamentary privilege is a special ‘privilege’ that is only available to members of parliament.

Regrettably, however, there seems to be little understanding in these views of the broader role of parliamentary privilege. The term ‘privilege’ is an unfortunate one as it creates the impression of a special right belonging to a small group of members of parliament only.

I have yet to come across a country where parliamentary privilege has been abolished.

Broadly defined, parliamentary immunity is a legal instrument that temporarily or permanently inhibits legal action, measures of investigation, and/or measures of law enforcement in criminal and/or civil matters against members of parliament. One or more elements of this definition are implemented in all immunity systems. Nevertheless, there are large differences between parliaments concerning individual characteristics and the scope of immunity. These differences concern both the outward effects of immunity—who is protected and from what—and its legislative design and legal nature.

The simplistic view of parliamentary privilege is that it exists just to allow members of parliament to slander people in parliament without fear of defamation action. In fact, I have even heard it said that some people believe members of parliament are immune from prosecution of any sort and are, somehow, above the law. However, the freedom of speech privilege itself is about a much broader protection than just allowing members of parliament to defame other people wilfully. Moreover, parliamentary privilege is about much broader protection than the freedom of speech privilege.

The privilege provides a very powerful protection and thus needs to be handled with restraint. Turning to the freedom of speech immunity, it enables parliament and its committees to debate and inquire into matters uninhibited by the threat of retaliation or retribution.

The individual member can pursue matters on behalf of constituents or the public without fear of legal action being taken by powerful interests to silence the member. These powerful interests could be the executive government, business interests, or others.

One might easily take this protection for individual members for granted and forget that, while the protection is for the member of parliament, it is the power it gives the member to raise matters on behalf of constituents, public interest groups and others that is significant. It is not uncommon for members to raise issues such as possible illegal activities of local businesses or unfair treatment of individuals by businesses.

Without this protection, imagine the impact that this would have on the freedom with which members could express themselves in raising matters in parliament.

From a different perspective, it must be acknowledged that parliamentary immunity is a ubiquitous phenomenon throughout the High Contracting Parties to the ECHR and the member states of the European Union. It is generally recognised that the protection that immunity affords is indispensable to the operation of democracy. Till today, there is still a consensus that parliamentary immunity is an important element of the separation of powers and part of a system of checks and balances.

Still, those who enjoy the protection of parliamentary privilege, members of parliament in particular, are duty-bound to ensure that privilege is exercised with restraint.

MPs who value their privileges above their principles soon lose both.