Parliamentary Privilege

1) Purpose

 To free members from harassment or intimidation of legal actions in discharging their duties as
MPs

 Provides protection for MPs against accusations of defamation from outside Parliament and also
protects the individual member in the exercise of his/her freedom of speech from the executive.
(See Art 63(1) of the Federal Constitution)

 Protect from obstruction or interference in the performance of their functions, thereby

maintaining independence and authority

2) Individual privilege

Freedom of Speech and Debate

 A. 63(2) FC: no person shall be liable to any proceedings in any court in respect of anything said
or any vote given by him when taking part in any proceedings of either House of Parliament or
any committee thereof.
 Unlike the UK position in Stockdale v Hansard, publication is included in A. 63(2) FC
 It is only applicable during parliamentary proceedings
 Privilege is not personal in nature; Lim Kit Siang v PP [1979] 2 MLJ 37; spoke during luncheon;
unsuccessful
 Seck Mun Foo v Datuk Haris b. Mohd Salleh [1997] 1 CLJ 321- the privilege does not protect a
Member publishing his own speech apart from the rest of the debate
 No regard to the premise
 R v Secretary of State for Trade ex parte Anderson Strathyclyde [1983] 2 MLJ All ER 233- where
the phrase “Proceedings in Parliament” was given a wider meaning. It seems clear that the
phrase is wider than simply ‘debates in Parliament’ & would cover questions in the House,
remarks in committee, & statements during any parliamentary business in the House.
 Rivilin v Bilainkin [1953] 1 QB 485- where a defamatory notice on the parliamentary notice
board was not protected by the privilege as the notice was not connected with parliamentary
business.
 The privilege, however, apply only to matters discussed in Parliament. In Abdul Rahman v D.R.
Seenivasagam [1966] 2 MLJ 66- repeated his allegations outside Parliament. Liable for
defamation
 The central notion of a “proceedings in Parliament” is, however, not clearly defined.
 Each House is the final judge of this question and the courts cannot interfere. (See the English
case of G.R. Strauss [1958] AC 331- where the House of Commons decided that communications
between an MP and a constituent and between an MP and a minister on a matter not before
the House are not part of parliamentary proceedings.
 In Malaysia, civil or criminal action cannot be taken against an MP for defamation or for the
violation of the Penal Code, Official Secrets Act or any other criminal statute in relation to his
parliamentary words. Exception: Sedition Art 63(4)
 Mark Koding v PP [1983] 1 MLJ 111- where an MP was convicted of sedition when he advocated
in Parliament the closure of Chinese and Tamil schools. Hence, an MP could be convicted for a
parliamentary speech which is considered seditious in nature.
 As part of its freedom of speech, the Houses of Parliament may clear their visitors’ gallery,
prohibit publication of their reports, Bills or committee reports may be put on embargo
 The Speaker may order unparliamentarily words to be withdrawn and expunged from the
record.
 Disobedience to such orders may amount to contempt of Parliament.

3) Collective Privilege

Right to regulate its own composition & procedure

• Each House has the power or capacity to determine for itself e.g. a complaint of breach of
privileges or contempt. This is investigated by the Committee of Privileges which can conduct a
proper hearing and require attendance of witnesses and production of documents.

• The Committee is not bound by the principles of natural justice or civil or criminal procedure or
rules of evidence.

• The Committee makes recommendations to the House and the latter’s decision is final. The
House may reprimand or commit to imprisonment not exceeding 60 days or a fine not
exceeding RM1000.

• The courts have been unwilling to question proceedings in Parliament, and have given full effect
to the English rule, now set out in Art 63(1) and Art 72(1). Thus, it has been held that the
decision of the Dewan Rakyat is final on a matter of disqualification of members
• Fan Yew Teng v Government of Malaysia [1976] 2 MLJ 262- it was held that Clause(1) of Art 63
prevents inquiry by courts into issue of disqualification of a MP).
• Abdul Karim bin Ghani v Legislative Assembly of Sabah: A similar result occurred when a State
Legislative Assemblyman challenged the constitutionality of his expulsion from his party when
expulsion cost him his seat

Power to punish for contempt

• Each House has the power to convert itself into the “High Court of Parliament” and try members
or outsiders for breach of privilege or contempt.

• The categories of privileges are known and defined by the law but “contempt” is nowhere
defined and in England the House is the ultimate judge of what constitutes contempt. (See the
English Case of Junor (1957), a newspaper article criticising the generous petrol ration MPs were
receiving was held to constitute contempt of the House.

• Contempt probably would refer to situations like: disobedience of any order of the House or its
officers; non-disclosure by a member of his financial interests in a topic on which he is speaking;
insulting the House or its members; disrupting parliamentary proceedings; tampering with
witnesses before parliamentary committees; refusing to give evidence when ordered to do so or
giving false evidence; misleading the House by supplying false information, etc.
• All in all, it seems that each House has “penal jurisdiction” to deal with contempt and as well as
breach of a privilege by a MP or even an outsider.

Immunity from judicial processes

• Under Art 63(1), the validity of any proceedings in Parliament cannot be questioned in any
court.

• In Fan Yew Teng v Government of Malaysia [1976] 2 MLJ- where it was ruled that Clause(1) of
Art 63 prevents inquiry by courts into the issue of the disqualification of a MP)

• Important to note that while addressing the above issue, exception exists i.e. courts will not
admit Hansard as evidence in legal proceedings involving MPs or outsiders who face prosecution
for sedition.

• Mark Koding [1983] 1 MLJ 111- in which an MP was convicted of sedition when he advocated in
Parliament the closure of Chinese and Tamil schools.

• However, it should be noted that judicial review will be exercised if a constitutional procedure
was not followed or if the Bill was ultra vires the powers of Parliament

4) Issues

• Proceeding in Parliament” is not defined;

• Rivilin v Bilainkin (1953).

• G.R. Strauss

• Lim Kit Siang v PP

• “Precinct of Parliament”?

• The practice goes against the principles of natural justice. For example, the Committee of
Privileges is not bound by principles of natural justice or civil or criminal procedure or rules of
evidence.

• Abuse of the privilege of freedom of speech- because of immunity

• Parliamentary privilege is drastically reduced in its scope by Art 63(4), - cannot raise sensitive
issues; at all?

• Difficulties with the scope of the penal jurisdiction of the House. – because the house can make
its own procedures

• The jurisdiction of the Court and Parliament appears to conflict in determining issues of
parliamentary privilege; ex: counting of votes was mistaken, can the courts examine the
records?

5) Reforms

• The phrase “proceedings in Parliament” should be defined in legislation.

• Person against whom a complaint is made should be entitled to attend hearings on the
complaint, to make submissions and call witnesses and apply for representation and legal aid. –
natural justice

• There should at least means to prevent or correct what is seen as abuse of parliamentary
privilege especially that of freedom of speech and debate.

• Recourse to the House’s penal jurisdiction should be confined to serious cases only. Also,
powers of punishment should be resorted to as sparingly as possible.

• Courts should be slow to refuse or admit in evidence, documents which could affect the
outcome of the legal proceedings and hence individual rights.

• There is a need to re-study the provisions of Art 63(4)

• Need to give a statutory definition to the phrase “contempt of Parliament”.