The doctrine of Parliamentary Privilege in a Modern Democratic Society - Essay Example

?The doctrine of Parliamentary privilege has no place in a modern democratic society Introduction The debate on whether parliamentary privilege augurs well with the prospects of development in the modern society is an issue marred with controversy to this day. With the advancements that have been witnessed in the political and social organization in the modern society, it is virtually possible to live with any system of government just as it is to do away with it. This implies that the relevance of the doctrine of parliamentary privilege on modern society can be assessed from different angles; affirmative or otherwise. To understand the magnitude of the doctrine in the modern political establishment, parliamentary privilege can be illustrated to be synonymous with parliamentary system. Even if debate for its review and in extreme debates its abolition persist, it is an issue that cannot be abandoned just in the heat of the arguments. The following discourse explores the possibilities of abandoning the doctrine based on some of its principles, in light of their appropriateness in a modern democracy. Parliamentary privilege and it purpose Parliamentary privilege according to legal experts is the immunity accorded some legislators whereby the legislators enjoy legal protection against criminal or civil liability in the course of performing their legislative duties (BBC2 para 7)1. Essentially, the privilege makes it possible also for parliament to debate or question issues that could interfere with court ongoing judicial proceedings in a case, expose state secrets, undermine national security, scour foreign relations, and slander individuals – whether parliamentarians or not. The concept of parliamentary privilege has its roots in the Westminster system and is widely applied across the world. The privilege emerged as a direct result of the contentions that hundreds of years ago existed between the courts the Crown, and the House of Commons2 (Attorney General’s Department para 4). Some of the countries that apply the privilege to parliament other than Britain include Australia, the United Sates of America, Canada, and Kenya, in Africa. In the UK for example, such privileges allow members of the two Houses (House of Commons and House of Lords) to freely deliberate in their participation in parliament without fearing legal action based on claims of contravening the Official Secrets Act, contempt of court or slander. This privilege also assures parliamentarian that they are immune from civil arrests in matters undertaken within the precincts of parliament, in this case the Palace of Westminister3 according to the BBC1 (para 2). However this is conditional in that the members of parliament only enjoy this privilege if their statements are uttered as part of parliamentary proceeding. One such event that reinforces the application of parliamentary privilege in the United Kingdom is with respect to the Zircon affair as it threatened to reveal national secrets. Protection of the parliament against any form of interference while handling legislative obligations is by far a genuine reason for the existence of such freedom as accorded to parliamentarians (Limon 34). However, abuse of the privileges appears to be inseparable from the process of their enjoyment. The purpose of the privilege accorded to parliament rests within the context of legislative duties but other contingent intricacies of interpretation have always made efforts futile to identify balance the genuine purposes. Parliament has failed to implement the appropriate balance and checks that would facilitate the relevant procedures to be applied in determining parliamentary privilege usage as genuine or not. Democratic institutions need such control as would be necessary for their independence on one hand while their abuse is clearly identified and dealt with amicably on the other hand. Arguments against Parliamentary Privilege The basic rule that parliamentary privilege is intended to achieve is resolve issues bearing a matter that is of public interest and importance (Chafetz 15). Contrary to this, parliamentarians have applied the relevant privileges to suit their own personal interests at the expanse of that of the public. There are reports that a number of parliamentarians in the UK have been implicated in the unprecedented financial fraud. By carrying out such economic crimes, there is every indication that the personal interests of these leaders fell in front of any national obligation to protect the will of the people . It has occurred in the past that misuse of the privilege can easily be misinterpreted and manipulated to suit the interests of a few people. Bearing in mind that the parliamentarians are a representative group, doing this would translate to taking public interest as ransom for individual wellbeing. Laudable progress of dealing with the problem of parliamentary privilege can be observed in Malta, a commonwealth country which struggled with the legal system up to the Supreme Court to have the doctrine dropped from the national doctrines governing parliament. With the correct cooperation from all the sectors of the democracy, it is possible to launch a spirited and fruitful fight against anti-democracy doctrines such as parliamentary privilege as observed in Malta. Modern democratic principles appear to be contradicted by the general usage and interpretation of parliamentary privileges, with regard to accountability and transparency. Lock 69) finds it ironical that despite demanding and enforceable calls for accountability and transparency by critics of the government, the parliament and the opposition seem to walk unscathed. Privileges enjoyed by the members of parliament accord a rare immunity to parliamentarians to state what they want devoid of a truth requirement so long as they do that inside the precincts of parliament. In the modern democracy, it is a requirement that every individual in any public office applies responsibility and accountability for what they state directly or imply to state for the sake of democratic process to thrive. It therefore appears that a doctrine favouring the exact opposite would be ill advised and ought to be reserved for less serious activities that do not involve such as those of the highest decision making institution of a people’s governance system. By allowing parliament to offer protection to a few people in isolation translates into a form of discrimination that democracy strongly dejects (Harders 115). It appears that such a privilege only exists to promote the notion of a selected few being above the law, a complete contrast of democratic foundations. In the context of origins of parliamentary privileges, there is a general picture of the need to protect the law makers from an absolute form of leadership that was largely outside parliamentary control (Wigley 28). By entrenching the protection in the practices of the highest law making institution of the state, it became easier for criticism and correction as interventions of checks and balances of governance. Basing the argument on the premise that modern democracy has largely done away with absolutism in governance, leadership format therefore renders parliamentary privilege vestigial by virtual of being irrelevant. Old and irrelevant practices usually get caught up in the development of the society and they have no further application but being shelved. Modern democracy has offered the correct checks and balances for the various departments of the government, besides making the government a completely representative entity (Wigley 25). Affirmative Arguments Parliamentary issues must be left to parliament to handle, since being the law forming arm of government would appear ridiculous for other any other arm to enforce the same law to disorient parliament from its duties. It must be noted that some institutions of the government such as the armed forces have a separate disciplinary system from that of the general public; why not should parliament not have such? Critics of such doctrines should offer an alternative to parliamentary privilege which could be difficult to match with respect to the nature of their duties (May 34). It is therefore a matter of fact that if the society needs to strengthen the institution of parliament, credible leadership should be involved into the system by the electorate. Much of the debate against parliamentary privilege seems unfair on a good doctrine being soiled by the fear of a gluttonous few. If the society was to develop a strong governance system, such issues must be faced head on by aligning its leadership, instead of apportioning blame to existing traditions that have worked in the past. Conclusion The practices that are related to parliamentary privileges are enforced in many jurisdictions with an aim or regulating the relationship that exists between the legislator, the executive and the judiciary. While the original intentions of the privileges is positive, it is beyond doubt that members of parliament may abuse the rights to favour their interests against that of the public. It is however beyond doubt that they have played a great role in preventing controversies that may arise between the three main arms of government. Furthermore, the privileges grant members of parliament the protection to question on behalf of the people that they serve the conducts and activities of government without fear. In this respect, it has upheld he principles of democracy more compared to the way it has been use to thwart it. As such, the concept and principle of parliamentary privilege remains modern and should be applied in all jurisdictions. Works Cited Attorney General’s Department. Parliamentary privilege. 2006. Web 22 Mar, 2011. http://www.ag.gov.au/www/agd/agd.nsf/Page/Evidence_Parliamentaryprivilege BBC1. Privilege. 20 Oct, 2008. Web 22 Mar, 2011. http://news.bbc.co.uk/2/hi/uk_news/politics/82536.stm BBC2. Q&A: Parliamentary privilege. 8 Feb, 2010. Web 22 Mar, 2011. http://news.bbc.co.uk/2/hi/uk_news/politics/8501441.stm Chafetz, Josh. Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions (Yale Univ. Press 2007) Harders, Sir Clarrie, ‘Parliamentary Privilege - Parliament versus the Courts:  Cross-examination of Committee Witnesses’, 67 ALJ 1993 pp 109 – 142. Limon, Sir Donald, Clerk of the House of Commons, ‘Erskine May’s Treatise on the Law, Privileges, Proceedings and Usage of Parliament,’ Twenty Second Edition, Butterworths, London 1997. Lock, GF ‘Parliamentary Privilege and the Courts:  The Avoidance of Conflict’, Public Law, Spring 1985, pp 64 – 92. May, Erskine. Parliamentary Practice: The Law, Privileges, Proceedings and Usage of Parliament. London: Butterworths. 2004. Wigley, Simon. 'Parliamentary Immunity: Protecting Democracy or Protecting Corruption?,' Journal of Political Philosophy, Vol. 11, No.2, pp. 23-40. Read More