The phrase “Parliamentary Privilege” can be misleading, suggesting that lawmakers are exempt from the law. However, its true purpose is to shield them from interference by the executive or anyone attempting to use the courts to hinder their work in Parliament. It aims to safeguard their activities as parliamentarians, preventing legal obstruction either pre-emptively or by challenging their actions or statements within Parliament.
In the 1917 case of Adam v Ward1 [1917] AC 309, Lord Dunedin stated that the privilege exists to uphold important public interests, especially when it comes to safeguarding freedom of speech and promoting open discussions in Parliament. However, it should not be misused as a tool for unjust oppression.
In recent times, a specific sector of the Malaysian business community has faced adverse consequences stemming from unfounded accusations made by a Member of Parliament. Consequently, business clientele has lost faith in this particular industry, primarily due to the defamatory nature of these allegations. Regrettably, the baseless claims made by the Member of Parliament, who enjoys protection under parliamentary immunity, remained without consequences.
To prevent the recurrence of such incidents in the future, it is advisable that the current government considers amending defamation laws. This amendment should serve as a deterrent to discourage members of parliament from making defamatory statements against both the public and business sectors. It is important to note, however, that these proposed changes should not negatively impact the immunity status afforded to members of parliament.
The principle of parliamentary immunity is meticulously crafted to optimize the efficient operation of a legislative body. It confers particular entitlements and advantages upon members of parliament, with the paramount among them being the liberty of speech. This faculty of articulation serves as the primary instrument for parliamentarians in the execution of their roles as representatives of the citizenry. These responsibilities encompass legislative functions, fiscal determinations, and the supervision of government proceedings.
Deprived of the capacity to articulate their viewpoints, scrutinize the government, and examine and bring to light wrongdoing, parliamentarians would encounter impediments in discharging their responsibilities proficiently. Hence, parliamentary immunity is imperative, affording members the liberty to freely express their views devoid of obstruction and minus the daunting prospect of prosecution or harassment.
In the contemporary era, Malaysia adopts the Westminster model, also known as the “privilege of freedom of speech” or “parliamentary non-accountability.”
The core principle of “non-accountability” grants parliamentarians special safeguards for their freedom of expression, permitting them to express opinions and engage in unrestrained debates. They can only be held responsible through parliamentary proceedings or public elections for expressions and votes made during their parliamentary duties.
The freedom of speech privilege primarily extends its benefits to members of parliament, including ministers in some countries. Many nations, particularly those adhering to the Westminster model and France, grant this privilege to individuals participating in parliamentary debates and proceedings.
The timing and extent of parliamentary protection afforded to members of parliament exhibit variations among countries. In certain nations, particularly those adhering to a French parliamentary tradition, this protection commences either upon their election or subsequent validation of the election. Conversely, countries like Argentina, Bangladesh, and the Philippines initiate such protection when members take their oath of office. British parliamentary tradition, along with some other nations such as the Former Yugoslav Republic of Macedonia, confines this protection to the duration of parliamentary sessions.
In most nations, parliamentary freedom of speech is linked to a parliamentarian’s official duties rather than the specific location of their remarks. Typically, statements made within the parliament are protected; however, this protection may not extend to activities regarded as unrelated or unnecessary for their parliamentary responsibilities, such as conducting press conferences within the parliamentary premises.
Conversely, protection may encompass statements made outside the parliament if they are deemed pertinent to fulfilling the parliamentary mandate, such as reiterating statements made within the parliament in other settings. The critical aspect rests in the interpretation of the phrase “exercise of the parliamentary mandate.” This interpretation varies significantly from country to country and evolves over time, aligning with the adaptations of parliaments and judicial practices to changing circumstances.
The freedom of speech privilege primarily covers statements and actions within the parliamentary setting, such as in the House, committees, bills, resolutions, questions, interpellations, reports, and votes. Some countries, like Australia and New Zealand, have taken steps to address citizens’ concerns about defamatory remarks made about them in parliament, introducing measures for fairness, such as allowing individuals to request responses to be added to parliamentary transcripts like Hansard.
On the punitive powers of parliament, the most significant aspect of parliamentary privilege concerning the institution of parliament is its capacity to establish and enforce its own regulations through disciplinary measures, which can include suspension and even expulsion. Parliaments that adhere to the British parliamentary tradition may function as a court of record, enabling them to penalize actions that breach parliamentary privilege (disregarding or attacking the special rights of parliament) or show contempt towards parliament (an offense against parliamentary authority). These penalties may involve imposing fines or, in rare cases, imprisonment.
Although instances of parliaments imposing prison sentences in the twentieth century are exceedingly uncommon, the power still exists. For example, Zimbabwe’s parliament used this authority as recently as October 2003, sentencing a parliament member to one year’s imprisonment with hard labor for assaulting a minister during a parliamentary debate. The Privileges, Powers, and Immunities Act governed this process, with the matter referred to the privilege committee and voted on by the House plenary along party lines. The parliamentarian had no recourse for appeal.
The International Parliamentary Union (IPU) has emphasized that in countries where parliaments retain the power to act as a court of record, internationally recognized fair trial guarantees, including the right of appeal to a court of law, must be upheld.
When freedom of Speech competes with defamation, freedom of speech is a fundamental democratic principle, and elected representatives, like MPs, should have the ability to express their opinions and concerns without fear of being sued for defamation. However, this freedom should be balanced with the need to protect individuals and businesses from baseless and harmful allegations that can cause reputational damage.
On misuse of immunity, this issue arises when MPs misuse their immunity to make baseless allegations against specific individuals or business communities with the intention of damaging their reputation or advancing personal or political agendas. This can undermine the integrity of the parliamentary system and cause significant harm to innocent parties like the business community.
On legal reforms, firstly, it may be worth considering legal reforms that allow individuals or businesses to take legal action against MPs for defamatory statements made outside the scope of their parliamentary duties, especially if these statements can be proven to be baseless and malicious. Such reforms should be carefully designed to avoid chilling legitimate speech and political discourse. And lastly on ethical considerations, MPs should also be held to ethical standards, and their respective political parties can play a role in holding them accountable for their statements and actions. This can include party disciplinary actions or the potential for expulsion if they engage in unethical behaviour.
Secondly, to prevent such a situation would be to enable the use of proceedings in Parliament as evidence in criminal courts, unless there is a clear reason why it should not be admissible. It can be argued that it is wrong in principle to deny the courts access to any relevant evidence when the alleged act is serious enough to have been recognised as a criminal offence. The logic of this argument would be that the protection of privilege should not as a general rule be available where proceedings in Parliament are relevant to court proceedings in a criminal case.
The R v Rule2 [1937] 2KB 3751 case clarified that letters from constituents to Members of Parliament (MPs) are not regarded as formal proceedings within the Parliament. However, these letters may be granted limited legal protection under defamation laws if they address matters of public interest, whether local or national, or reasonably pertain to the responsibilities of the MP or Minister. In essence, this means that individuals, whether a Member or a constituent, can defend themselves against defamation claims if they acted in good faith and without malicious intent, provided the content of the letter relates to public concerns and is not strictly personal and unrelated to parliamentary business.
Additionally, in 1958, the House of Commons narrowly decided that a letter from an MP to a Minister did not constitute a parliamentary proceeding. This decision has been upheld by several parliamentary committees, although some voices have called for a reconsideration or revision of the law in this regard.
In light of the precedent set by the case of R v Rule [1937] 2KB 375, it becomes imperative for the Malaysian Parliament to establish clear and precise boundaries for parliamentary proceedings. This is essential to mitigate the risk of any potential abuse or misuse of these proceedings by its members
Lord Hoffman3 in one Hansard said, “There are provisions in the Bill which I think are excellent reforms and which I wholeheartedly commend to the House—for example, the clause which says that a corporation cannot sue for defamation unless it proves that it has suffered, or is likely to suffer, financial loss. There seems to me a great difference between the reputation of an individual and that of a corporation. An individual’s reputation is part of his personality. It is what the noble Baroness, Lady McIntosh, in her Shakespearean quotation, called his “immortal part”. He feels the pain when a slur is cast upon it. A company’s reputation, on the other hand, is a commercial asset. It is what brings in the customers, and the company does not suffer as long as they continue to come, so it should not be able to sue unless it can show that it has suffered financial loss. “Therefore, the Malaysian government ought to revise defamation laws, enabling the removal of parliamentary privilege for Members of Parliament who make unsubstantiated allegations against specific sectors of the business community.
The question of whether defamation laws in Malaysia should be amended to protect the innocent business community is a complex and nuanced issue. Defamation laws are intended to strike a balance between protecting individuals and businesses from false and damaging statements while also upholding the right to freedom of expression.
Amending defamation laws to provide additional protections for the business community might be seen as a way to prevent false and harmful allegations that can harm a company’s reputation and livelihood. However, it’s essential to ensure that any changes do not stifle legitimate criticism or investigative reporting that serves the public interest.
In considering such amendments, it’s important to strike a balance between protecting businesses and individuals from baseless allegations and safeguarding freedom of speech, which is a fundamental pillar of a democratic society. Legal reforms should be carefully crafted to avoid potential misuse or chilling effects on free expression.
Additionally, it’s vital to ensure that the burden of proof and remedies available in defamation cases are fair and reasonable. Striking the right balance is challenging, and any proposed changes should involve input from legal experts, stakeholders, and the public to ensure that the laws effectively serve justice and the public interest.
In summary, the question of amending defamation laws in Malaysia to protect the innocent business community is a matter of careful consideration and striking a balance between protecting reputation and preserving freedom of expression. Any changes should be made judiciously and with a view to maintaining a fair and just legal framework.
- [1917] AC 309
- [1937] 2KB 375
- https://hansard.parliament.uk/Lords/2010-07-09/debates/1007098000552/DefamationBill
Written By Daniel Chong LLB (London and IIUM), LLM (London) and Master Of Education (Pupil-in-Chamber)
Paul Cheah Associates.
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Notice: This alert contains general information and opinion of the firm only. It does not constitute legal advice nor an expression of legal opinion and should not be relied upon as such.