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Parliament versus The People: Contempt of Parliament or Contempt of the People? - The Scope of Parliamentary Contempt Power

What is the Scope of Parliament’s Contempt Power?

It is beyond question that our Parliament, like all parliaments, is vested with “the power to punish for contempt.” The Constitution expressly affirms that fact in Articles 122 and 123. The question that remains to be answered is the scope and content of Parliament’s contempt power. Specifically, against whom and for what conduct may Parliament use its contempt power?

Article 122 defines as contempt of Parliament, “Any act or omission which obstructs or impedes Parliament in the performance of its functions or which obstructs or impedes a member or officer of Parliament in the discharge of his duties, or affronts the dignity of Parliament or which tends either directly or indirectly to produce that result”. While helpful as a starting point, this provision alone does not provide enough clarity or guidance as to the scope or content of Parliament’s contempt power. In other words, it is a provision that, like many others in the constitution, requires interpretation. Where, then, might one look to get a clearer picture of the meaning and scope of Parliament contempt power?

Mention has been made of Article 123. But that provision adds little to our understanding of the scope and meaning of Parliament’s contempt power. It merely says that, the fact that a particular conduct offends a provision of the criminal laws does not mean it cannot also be treated separately and additionally as contempt of Parliament. For example, if a witness appearing under oath before a committee of Parliament intentionally gives false testimony to the committee, that act may be prosecuted as perjury under the criminal laws and, at the same time, as contempt of Parliament. Article 123, therefore, merely tells us that, in some cases a person may be punished twice for the same offence; first, for contempt of Parliament, and second, for violating some other provision of the Criminal Offences Act. Thus, while Article 123 further affirms Parliament’s contempt power, it does not help us determine the scope or permissible uses of that power.

What about Article 115? Article 115 states that, “There shall be freedom of speech, debate and proceedings in Parliament and that freedom shall not be impeached or questioned in any court or place out of Parliament.” This “Speech and Debate clause” confers no power on Parliament as such. What it confers is a privilege in the form of an immunity or protection from lawsuit or civil or criminal liability. And that immunity is conferred on MPs for the things they say in the course of debate and proceedings in the House or in committee.

Thus, a statement by an MP, which might otherwise be deemed defamatory if said outside Parliament about a named individual, would carry no legal consequence if made on the floor of the House or in committee--although Parliament itself, pursuant to Article 116(2) can treat the matter as a breach of privilege and require the Member to render appropriate apology.

Article 115 is designed to encourage robust and frank deliberations in Parliament. It recognizes the fact that, as Parliament is a political chamber whose members must represent and articulate the concerns, grievances, frustrations, and demands of their diverse constituents, debate and deliberations in the House or committee might get passionate, heated, and acrimonious. In addition, members may not always come to these debates with full knowledge or information on the matters in discussion.

The privilege conferred by Article 115 is, therefore, important to ensure that members participate in the deliberations of the House or a committee without fear of personal legal liability. One cannot help but note the irony that, while the Constitution protects MPs from legal liability for the wrongful things they might say about others in the course of proceedings or debate in Parliament, these same MPs now seek to use Parliament’s contempt power against everyday citizens who voice unflattering or demeaning opinion about MPs in the public square.

I have also heard Article 115 invoked for the proposition that, nothing Parliament does within the four walls of the House or a committee, including proceedings for contempt of Parliament, can be challenged in court or anywhere.

This reading of Article 115 is, of course, clearly erroneous. First of all, as the UK Government’s 2012 Green Paper on Parliamentary Privilege explains, “The term “’court or place out of Parliament’ has never been read as meaning any place, as this would have the absurd effect of stopping questioning of what was said in Parliament on the streets or in newspapers.

Instead, in keeping with legal principles of interpretation, the assumption has been that the term applies to bodies which are similar to courts – the most obvious being tribunals.” The immunity MPs enjoy under Article 115 is an immunity from personal legal liability and cannot in any way be read to confer on MPs immunity from public censure by citizens engaged in routine conversation in the public square. Secondly, the privilege or immunity conferred under Article 115 is limited to “freedom of speech, debate and proceedings”. Therefore, it is only the exercise by MPs of their freedom of speech, in the context of debate and proceedings of the House, that may not be challenged in any court or tribunal. Article 115 does not extend a blanket immunity to every act that is done by MPs in Parliament. For example, if a witness appeared before Parliament and was physically assaulted by a Member of Parliament, that Member could not hide behind Article 115 to claim immunity from being sued in tort or prosecuted for the assault.

During the scandal that broke over British MPs presenting false expense claims, some defendants in criminal trials relating to the scandal argued that they could not be prosecuted on the basis that submitting claims for expenses was protected by parliamentary privilege; this argument was unanimously rejected by the U.K. Supreme Court in R v Chaytor (2010).

As a general proposition, Parliament is protected by the principle of separation of powers from having the courts pry into its everyday internal business. However, that general principle holds true only if Parliament is acting or has acted within its lawful authority and jurisdiction. If Parliament acts in excess of its powers, it cannot escape judicial challenge and scrutiny for its unconstitutional acts by invoking Article 115 or any provision for that matter.

Parliament’s powers spring from the Constitution, and only when it stays within the limits of its constitutionally delegated powers is it entitled to non-interference in the conduct of its internal business. In short, Article 115 does little to advance our understanding of the content of Parliament’s contempt power. We must, therefore, continue to look elsewhere for further clarity.

Contempt of Parliament Not of Equal Scope as Contempt of Court

Some have suggested that Parliament’s contempt power is similar or identical in scope to the power of the judiciary to punish for contempt of court. Parliament’s contempt power indeed has something in common with the power of the judiciary to punish for contempt of court: Both serve a functional or instrumental purpose, designed to assist the respective institution to exercise its mandate and perform its functions effectively.

In that respect, the contempt power of Parliament, like the contempt power of a court, is a means to an end; it is not an end in itself. Its primary purpose is to enable Parliament to protect its institutional mandate and prerogatives as a legislative and oversight/investigative body from being obstructed, frustrated, or disregarded by any person over whom such prerogatives and mandates are exercised.

Beyond their common instrumental purposes, however, there is an important reason why Parliament’s contempt power cannot have the same reach as a judge’s power to punish for contempt of court.

Judges and MPs operate in vastly different environments. As opposed to the political environment, judges operate in a deliberately cloistered setting that is also highly formalized and structured. By the nature and traditions of their calling, judges generally cannot enter the public fray or even use their courtrooms to debate or respond to their harshest or most vile personal critics.

Professionally constrained in their ability to refute or answer unjustified attacks on them, judges are allowed to use contempt of court to counter some of these attacks where such attacks carry a risk of interfering with the administration of justice in a matter at hand. Yet, even with contempt of court, it has long been established in case law that its purpose is not to vindicate the personal integrity of the judge or to protect him from insult but to prevent or punish undue interference with the administration of justice.

Unlike judges, MPs are active players in an everyday political environment that is characterized by open, robust, and often intemperate and acrimonious, give-and-take with other politicians, the media, and the public. And unlike judges, MPs have full access to the media and are free to use the same opportunity to answer or hit back at their attackers and critics.

Moreover, as we have seen already, MPs enjoy special privilege in Parliament to respond to any verbal or published attack on them or on Parliament as a whole that they might deem unfair or wrong. Because the environment in which they operate as politicians is given to heated exchanges and does not restrict their ability to give and take in equal measure, MPs, both individually and as a collective body, cannot justify the use of “contempt of Parliament” on the same terms or to the same extent as judges can contempt of court.

Our Constitution also treats contempt of court specially in allowing the courts to use their contempt power summarily to restrict the liberty of the individual without extending a similar power to Parliament to use its contempt power. To appreciate this point one must juxtapose the respective contempt powers of the courts and of Parliament against relevant provisions of Chapter Five of the Constitution.

Chapter Five contains the provisions on the fundamental human rights and freedoms guaranteed to all persons living within the jurisdiction of Ghana. The Chapter opens, importantly, with the provision in Article 12(1), which states that, “The fundamental human rights and freedoms enshrined in this Chapter shall be respected and upheld by the Executive, Legislature and Judiciary and all other organs of government and its agencies.” This provision makes it clear that the institutions of State, including, notably, Parliament, are duty-bound to respect and uphold the constitutionally guaranteed rights and freedoms of Ghanaians and all other persons living in Ghana.

As we get further into the substantive provisions of Chapter 5 we encounter Article 14(1). This provision guarantees every individual their “personal liberty” and provides that “no person shall be shall be deprived of his personal liberty except in the following cases and in accordance with procedure permitted by law”. The “exception” half of Article 14(1) then lists seven circumstances—the only permissible instances—in which the liberty of the individual may be lawfully restricted. These are: “(a) in execution of a sentence or order of a court in respect of a criminal offence of which he has been convicted; “(b) in execution of an order of a court punishing him for contempt of court”; “(c) for the purpose of bringing him before a court in execution of an order of a court”; “(d) in the case of a person suffering from an infectious or contagious disease, a person of unsound mind, a person addicted to drugs or alcohol or a vagrant, for the purpose of his care or treatment or the protection of the community”; “(e) for the purpose of the education or welfare of a person who has not attained the age of eighteen years”; “(f) for the purpose of preventing the unlawful entry of that person into Ghana, or of effecting the expulsion, extradition or other lawful removal of that person from Ghana or for the purpose of restricting that person while he is being lawfully conveyed through Ghana in the course of his extradition or removal from one country to another”; “(g) upon reasonable suspicion of his having committed or being about to commit a criminal offence under the laws of Ghana.”

The above-quoted sections of Article 14(1) identify unambiguously the only (seven) instances in which a person may lawfully be held, restricted, or confined against his or her will. Those instances include “in execution of an order of a court punishing him for contempt of court.” Notably, “contempt of Parliament” is not one of the seven grounds on the basis of which the liberty of the individual may be restricted or limited under our Constitution.

This means that, while the Constitution recognizes Parliament’s power to “punish for contempt”, that power by itself, unlike the judiciary’s contempt power, does not give Parliament the ability, acting on its own, to restrict or limit the constitutionally guaranteed liberty of an individual. Thus, for example, Parliament cannot, under our constitution, order a person to be jailed or held against their will for contempt of Parliament.

Under the Constitution, the only circumstance in which a person can be jailed or detained for an offence, other than for contempt of court, is if the offence and the penalty associated with it are codified or contained in a written law (in compliance with Article 19(11)) and the alleged violator has been duly tried, convicted, and sentenced by a court of law as per Article 14(1)(a). Parliament by itself cannot summarily detain or jail anyone for contempt. Arguably, the Parliament Act deals with this matter. As we shall see in the next section, however, this still leaves the more fundamental question unanswered.



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