Courts should respect privileges of Parliament

By Abdikadir Sheikh

The idea of separation of powers was to avoid the concentration of power in one place which created the three arms of government that we know of today in our democratic system.

Even though each arm’s function and role is cut out, the boundary between law courts and the jurisdiction of houses of parliament in matters of privilege has been in dispute for a long time and ours is not any different. In old democracies like the UK, this dispute seems to be relatively settled.

Our courts are interfering and trying to stop the running of parliament businesses and going against well established principles of separation of powers. The problem can be associated to the Judiciary’s new found independence from the executive and its lack of adequate knowledge of privileges and immunities of parliaments.

 Parliamentary privilege are rights enjoyed by members of parliaments without which they could not discharge their functions and which exceeds those possessed by other bodies or individuals. Some privileges rest solely on the law and customs of parliament while others have been defined by statute.  

These privileges include freedom of speech, freedom from arrest and exclusive cognizance. Thus exclusive cognizance in certain circumstances may override other generally accepted legal rights.  In England, the courts have recognised the need for an exclusive parliamentary jurisdiction as a necessary tool to promote the dignity and efficiency of parliaments.

In exclusive cognizance, every parliament has the right to be the sole judge of the lawfulness of its own proceedings, and to settle or depart from their codes of procedure. This is equally the case where the assembly in question is dealing with a matter which is finally decided by its sole authority, such as  an order or a resolution like the resolutions passed by the County Assembly of Embu and the Senate. The Senate and Embu assembly resolutions can only be rescinded by them.

In England the fullest recognition was accorded by the courts to the rights of both houses of parliament to exclusive parliamentary cognizance of their proceedings even in matters prescribed by statute in a judgment given in Bradlaugh v Gosset.  In this case a newly elected member of parliament was prevented taking oath by order of the house.

He brought a case in court seeking the order to be declared void, the judge declared that even if the House of Commons forbade a member to do what statute required him to do and, in order to enforce prohibition, excluded him from the house, the court had no power to interfere. It is good practice to obey court orders regardless of the legality or merit.

However, when courts fail to observe the privileges and independence of parliaments to run their businesses, assemblies will have no option but carry on and perform their functions. The House of Lords stated: “It would be impracticable and undesirable for the High Court of Justice to embark upon an inquiry concerning the effect or effectiveness of procedures in the house of parliament or an inquiry whether in any particular  case those procedures were effectively followed.”  

In most commonwealth countries, it is judicially recognised that parliament is the master of the application of its own procedures to the business before it.

In Northern Ireland, the High Court rejected an application for leave to apply for judicial review of the Speaker’s decision to withdraw certain facilities of the house from members who had not taken the oath on the grounds that the decision lay within the realm of internal arrangements of the house within which courts would not interfere. This is the approach that is desirable and expected from our courts and judges, to have respect for parliamentary privileges. If a court issues orders without carefully thinking about its consequences and implication then it is that court officer issuing the court order that is bringing disrepute to the Judiciary and the courts and it is not right holding someone in contempt for not obeying an ignorant order. Courts have a duty and have to be careful not to act so as to cause conflict with parliaments.

There is a whole trend of authority for over century that courts cannot interfere and investigate the proceedings of a parliament. 

Parliamentary privileges are absolute and exclusive.