WHAT PRIVILEGE OF THE ASSEMBLY DID THE MINISTER BREACH?

Nov 25, 2012 Features / Columnists, Peeping Tom

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The 10th Parliament may be in its last days. If what took place on Thursday last is taken to its logical conclusion, it could see the proroguing of parliament and the calling of early elections.
This danger was clearly recognized by one of the members of the House, who saw the life of the entire assembly being at the mercy of a game of roulette. Despite his warning, the opposition was determined to proceed with the motion aimed at gagging the Minister.
With the controversial ruling by the Speaker to send the motion to the Committee of Privileges and then preventing the Minister of Home Affairs from speaking until the determination of the matter, what should have been a fairly straightforward matter has become complicated.
There was a motion before the House. This motion was intended to call on the House to gag the Minister. In considering this motion, the Speaker had to determine what type of motion was before the House. The fact that the motion was sent to the Committee of Privileges means that the motion was deemed one of privilege.
The next step was to decide whether the motion was properly before the House. To be properly before the House means that the motion has to be compliant, both in terms of procedure and substance.
Procedurally, it would have been necessary to determine whether in accordance with the Standing Orders of the National Assembly, the motion was in order. The Speaker would have been required firstly to determine whether the Standing Orders demanded that leave be sought to move the motion. Secondly whether it was raised at the right time… that is, after questions to the Minister.
Thirdly, the Speaker needed to determine whether the motion, as a motion of privilege, indicated that the matter should be referred to the Committee of Privileges. If the Standing Orders require that a motion of privilege should so indicate, it would be hard to envisage how a motion of privilege can be valid if it does not resolve that this be done. These are the procedural considerations.
The Speaker must then consider the substantive aspects of the motion before it is allowed. The first of these would, of course, be to ensure that the complaint being made constitutes a breach of privilege.
And since, according to Sabaroche v The Speaker Of The House of Assembly et anor, that legislative assemblies in independent countries of the Commonwealth did not acquire privileges under common law by virtue of ancient usage and prescription, then any privileges would have to have been acquired through statute or via the Constitution.
Article 172 (1) of the Constitution of Guyana provides for parliament to make laws for the privileges, immunities and powers of the members of the National Assembly.
The Constitution goes on to detail certain privileges of members. The first of these is that civil or criminal proceedings cannot be instituted against any member of the National Assembly for any words spoken or written while in the House or in committee or because of any matter or information which was brought to the member therein by petition, bill, resolution, motion or otherwise. This privilege essentially protects freedom of expression of a member.
The second privilege created by the constitution allows members to enjoy freedom from arrest for any civil debt. The third privilege is that no court order may be served on the precincts of the Assembly while it is sitting.
The Speaker therefore needs to satisfy himself that substantively, the complaint being made against the Minister constitutes a breach of any of the above privileges. If he is not so convinced, then a motion of privilege should not be entertained.
If on the other hand he does believe that the complaint is one of privilege, the matter still cannot be referred to the Committee of Privileges. The Speaker first has to decide whether a prima facie case exists.
In the same case from the Court of Appeal in Dominica stated above, it was held that legislatures in independent countries do not acquire privileges under common law by ancient usage and prescription.
As such, in the absence of laws creating privileges, the only such privileges that such assemblies possess are those that are essentially necessary for their functioning.
A broad interpretation of parliamentary privileges would therefore include those provided for in law and the Constitution, and those that are “essentially necessary for the exercise of its functions” of parliament.
It is hereby therefore respectfully submitted that if a protection is not provided for either in statute or the constitution, or is not essentially necessary for the functioning of parliament, then that protection is not a privilege that is recognized.
It still needs to be determined just which privilege Minister Rohee breached and what it was that he did in the National Assembly that would led to this breach.
While parliament as a collective enjoys the privilege of exclusive cognizance, this allows it to make its own Standing Orders. But its privileges must emanate either from the Constitution or the law, or must be deemed as essential to its functioning.
Exclusive cognizance, more pointedly, does not preclude a determination by the courts as to what constitutes a lawful privilege. The Courts are therefore likely to be asked to determine whether the Minister is being tried for an offence that does not exist in law or for which a prima facie case did not exist.
Further, since the court is the guardian of the Constitution and since the Constitution itself outlines parliamentary privileges, solid grounds exist for the filing of a constitutional action challenging the actions against Minister Rohee.
It is therefore expected that the government will move, whether now or after the findings of the Committee of Privileges, to establish that the Minister was effectively being tried for a breach of a privilege that did not exist in law.

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