Our Constitution is a gift from the people to themselves. It creates the institutions of government and, amongst other things, enshrines the rights of citizens and individuals. Our Constitution embodies the highest ethical traditions in its provisions ranging from equality to universal adult franchise. If there is a common point of lament directed at its provisions, it has to be at the scope and extent of legislative privileges (there are books dedicated to examining this one single topic!).
It is not the purpose of this article to take the reader on a tour of the judicial interpretation of constitutional provisions relating to privileges even though a brief account is provided for. This article examines the frequent collision site between freedom of speech and legislative privileges and focuses on the need for legislatures to exercise restraint in invoking these privileges. It argues that matters better classified as being of a defamatory nature ought to be taken up before the court.
The legislature is designed to be a place for exchange of views, law-making and exercising checks on executive action. It follows that legislatures have a fixed amount of man-hours within which to carry out these complex tasks in an increasingly complex (and numerous) society that both demands a welfare state and a hands-off government! Consequently, actions that obstruct the ability of the legislature to function may be regarded as generally being undesirable.
While the legislature has the right to regulate the publication of its proceedings, the question of how it regulates comment on its proceedings is a vexed area. A set of Supreme Court judgments subordinate a type of fundamental right (freedom of speech) to legislative privileges while maintaining that another type of fundamental right (personal liberty) cannot be subordinated to privileges. Subsequent judgments link the troika of rights – freedom of speech, equality and liberty together, raising the question as to whether the first set of cases subordinating freedom of speech to privileges would remain valid if challenged today. Therefore, the time is ripe to ask the question: should comments of the actions (or inaction) of legislatures (and legislators) come under the scope of legislative privileges?
Broadly, a clear distinction can be drawn between actions that obstruct the functioning and those that lower repute of a legislator or the house. It would be remarkable that a comment could obstruct the proper functioning of the house unless the comment incites people to actually rebel and physically prevent the house from functioning. That would be some comment, and the author would have a place in history.
On the contrary, it is conceivable that comments of a critical nature may lower the repute of a legislator or the house (essentially, this amounts to defamation). Should the legislature spend time addressing those comments itself especially when the courts are an appropriate forum for adjudicating matters related to defamation? There are three issues to consider in this: one, in court, the defense of truth and/or fair comment would be available to the commentator which is not otherwise necessarily available in a breach of privilege proceeding; two, duplicating of the work already done by courts may not be wise use of resources and time; three, whether the legislature ought to exercise what’s essentially a judicial function in determination of whether the legislator/the house has been brought to disrepute.
A legislator -hopefully – engages with a variety of viewpoints including those that are critical or contrary to the position adopted by the legislator. Often, pressure groups, interest groups & civil society (I’m omitting reference to “lobbies”) try to influence a law-maker’s position. As stakeholders, they often provide both trenchant criticism and different viewpoints. How often do we hear that these stakeholders are charged with breach of privilege? Should a distinction be drawn between them and the fourth estate? Are we to haul up protestors against the stance/words of a legislator as being in breach of privilege? This illustrates the precise problems with any invocation of breach of privilege (in the context of freedom of speech): what are the standards and thresholds to be applied? Is it just that the legislature is a judge in its own cause?
Even in cases of defamation, the standard applied to a public servant is of a higher threshold: the nature of their work elicits public response, criticism and/or applause, as the case may be. It follows that it is not every criticism that would amount to defamation and a wider latitude should be awarded to comments and criticisms on the functioning of public servants (let’s not forget that this is precisely what legislators are). Till such time as there is no larger public engagement on the nature and manner of privileges bestowed on legislators (barring those specifically enumerated in the Constitution) and there is no codification of such privileges, it is only better that common sense prevail.
It is worth noting that dignity is best preserved through dignified action. Actions are dignified when they are just, and ideally, conducted before an independent tribunal or court. In keeping with the highest ethical standards of our Constitution, it may be preferable to let the courts handle matters pertaining to defamation rather than use the process of breach of privilege.