PARLIAMENT AND THE PRINCIPLE OF SUB JUDICE

Nov 11, 2012 Features / Columnists, Peeping Tom

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During the previous parliament, there was an attempt made to debate the collapse of CLICO (Guyana). The motion for the debate was denied in accordance with the Standing Orders of parliament.
The ruling was to wit that such a matter could not be entertained, because the Standing Orders do not permit debate on a matter that is sub judice (before the courts). This was a controversial ruling, because the relevant Standing Order of the Parliament merely states that during any member’s presentation “ Reference shall not be made to any matter which is sub judice, in such a way as might, in the opinion of the Chair, prejudice the interest of parties thereto.”
The Standing Orders do not dissuade discussion of a matter that is of public interest. Neither does convention or case law. The principle of sub judice, also, does not place a gag on discussion of matters of public importance, be it in parliament or in the media, except of course, if the nature of that discussion prejudices the interests of the parties concerned or is otherwise in contempt of the courts.
Parliament can therefore, in my humble opinion, discuss matters of public importance that are sub judice. What it cannot do is to raise comments that would prejudge the minds of the public, or prejudice a fair trial, witnesses or parties to the trial.
Even if in the instance, parliament did not have a specific Standing Order on the issue of matters that are sub judice, convention would dictate that the same rule be applied, because this rule reflects a principle of general application, that is, both parliament and the press can comment on a matter of public interest providing that it does not prejudge of prejudice the parties to the trial or witnesses therein, and providing that it does not bring the court into disrepute.
In fact, the very basis for the existence of the sub judice rule is to ensure comity between the courts and other bodies such as parliament and the press. If the administration of justice could be scandalized, ridiculed and held up to contempt by either of the two, it would undermine the foundations of justice.
The principle of sub judice is not a gag order. It is allowable for even decisions of the Courts to be criticized. However, such criticism must not impute improper motives to the Bench and must be done without malice or ill-will. The Courts are not immune from scrutiny, even from the mal-informed, provided that such scrutiny does not bring the court into disrepute, because this would constitute contempt.
A comment about a matter that is sub judice would equally be in contempt if it tries to prejudge an issue. For example, it seems that on both sides of the political divide, conclusions have already been arrived at as to what the findings of the Commission of Inquiry will be. In fact, the motion against Minister Rohee in parliament was in effect a motion that prejudged the Commission of Inquiry.
Any comment that is likely to prejudge a trial would be considered to be in contempt. As was stated by Lord Hadwick in the St. James Evening Post Case, “ … nor is there anything of more pernicious consequence, than to prejudge the minds of the public against persons concerned as parties in causes, before the cause is finally heard.”
Any comment or discussion also that is likely to prejudice a fair hearing, or prejudice the minds of witnesses or jurors, would also be likely to held in contempt. Equally, comments that misrepresent the courts can be in contempt.
Fair and temperate comment is allowable, but caution must be exercised even in respect to fair and temperate comment because, for example, in criminal matters, fair and temperate criticism might prejudice the minds of witnesses and jurors and therefore constitute contempt.
There is an abundance of precedents to guide the Chair in arriving at a decision as to whether to allow debate in parliament of a matter that is sub judice. Even if there is no Standing Order concerning this principle, the Chair can resort to precedent in arriving at a decision as to whether to allow debate.
This point is important, because it is being suggested in some quarters that conventions, practices and usages of the Commons are only applicable where these are incorporated into local law. Not so. If this were the case, the case law would by extension fall on its face. (This will be discussed in a subsequent column).
Given the nature of some of the debates in the House and the latitude which privileged comment allows, it may be prudent for the Chair to be restrictive in allowing debate on matters that are sub judice, for fear that reports on debates could prejudge the minds of the public or prejudice a fair trial. This is especially true for matters in which witnesses have to be called.
What must be clear is that the principle of sub judice does not automatically prevent public discussion of an issue, both in the press and in parliament.

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