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Constitutional Law ( Chapter 4)

Constitutional Law (CHAPTER 4)
• In simple terms, parliamentary privileges in Malaysia are based on English law, which
aims to protect the independence of Parliament and its members from outside interference.
This concept comes from the historical context of the English Parliament in the 17th
century when it had to defend itself against the King's attempts to take over its powers.

• Now, you might wonder why these privileges are relevant in Malaysia, especially when
Malaysia has its own written Constitution to which Parliament is subject.

• The reason is that Article 72(1) of the Federal Constitution in Malaysia extends a
provision from the English Bill of Rights of 1689 (specifically Article 63(1)) to the State
Legislative Assemblies. This provision essentially states that the validity of any actions or
decisions made within Parliament or its committees cannot be questioned or challenged in
any court.
•
So, in Malaysia, this means that what happens within Parliament or its committees is
considered final and cannot be legally disputed in court.
Meaning of Parliamentary Privilege
• In simple terms, parliamentary privilege refers to special rights and protections that
Parliament and its members have. These rights are unique and important for Parliament
to do its job effectively. They are different from what regular people or other
organizations have.
• While parliamentary privilege is a part of the country's laws, it's also a bit of an exception
because it gives Parliament and its members some special advantages that others don't
have. These advantages are necessary to ensure that Parliament can function properly and
independently.
Purpose of Parliamentary Privilege
• There are parliamentary privileges that allow the Houses of Parliament which carry out
their duties as efficiently as possible without outside intervention or misuse of the role by
those within Parliament. In other words, in discharging their responsibilities as MPs, the
rights are intended to free members from abuse or threat of legal action.
• Provides cover for MPs from outside Parliament's allegations of defamation and protects
the individual member in exercising his / her executive freedom of speech. This has been
explained in detail in Article 63 of the Federal Constitution.
EXP : OPPOSITION CAN SAY SOMETHING CONTROVERSIAL ABOUT PM AND PM
CANT SUE FOR DEFAMATION.

• The privileges are intended to collectively shield the Houses & their representatives
individually from any challenge or intervention to execute their duties, thereby retaining
independence and authority.
There are two types of Parliamentary Privilege
• Individual Privilege
-Based on Article 63(2) of the Federal Constitution which states regarding to freedom of speech &
debate. It is further explained as, no person shall be liable in any court for any proceedings
relating to anything said or to any vote provided by him in any proceedings of either the House of
Parliament or any of its committees.

-Under Article 63(3) of the Federal Constitution, states that any publication is equally
privileged by or under the jurisdiction of either House

Freedom of Speech and Debate (Article 63(2)): MPs in Malaysia can say what they want and
discuss issues freely during parliamentary meetings. Nobody can take them to court for what they
say or how they vote during these meetings. It's like a safe space for them to speak their minds
without legal consequences.

Example: Imagine an MP criticizes a government policy during a parliamentary session. Even if

their words are harsh, they can't be sued for defamation or any other legal action just for what they
said in Parliament. Publication Privilege (Article 63(3)): This rule also protects documents and
reports related to Parliament. If something is under Parliament's control, it's protected from legal
action.

Example: Let's say there's a report about government spending that's part of Parliament's records.
Even if the report is critical of the government and gets published, nobody can take legal action
against the people who published it because it's related to Parliament.

Limitations Outside of Parliament: The freedom to speak and publish without legal consequences
mainly applies to what happens within Parliament. If MPs talk about non-parliamentary matters or
make false statements outside of Parliament, they can still face legal action.

Example: If an MP falsely accuses someone of a crime during a public speech outside of

Parliament, they can be sued for defamation because it's not related to their parliamentary duties.
What Counts as "Proceedings in Parliament": This can be a bit tricky to define precisely. It
includes more than just formal debates; it covers discussions in committees and other parliamentary
activities.

Example: If MPs are investigating a problem outside of Parliament as part of an official

parliamentary committee, their discussions and actions during that investigation are still considered
part of "parliamentary proceedings."

In the case of Lim Kit Siang v PP (1979), an opposition Member of Parliament (MP) found
himself in a legal dilemma. He had obtained classified information about a Navy purchase and
publicly discussed it during a casual lunch gathering, raising questions about the deal's legitimacy.
He argued that his status as an MP should protect him from legal consequences for discussing this
outside of Parliament. However, the court ruled against him, emphasizing that being an MP doesn't
grant immunity when discussing sensitive information that violates other laws, such as the Official
Secrets Act. This case underscored that an MP's parliamentary privileges do not extend to activities
that fall outside their parliamentary duties, especially when they involve breaking the law.

In the case of Seck Mun Foo v Datuk Haris b. Mohd Salleh (1997), a Member of Parliament
received certain information and subsequently shared it publicly. The court clarified that the special
rights enjoyed by MPs, such as freedom of speech within Parliament, do not shield them from legal
repercussions if they publicly discuss information they received, particularly when it has no direct
relevance to parliamentary matters. In essence, this case highlighted that MPs can still face legal
consequences if they disclose information they received in a manner unrelated to their
parliamentary duties, regardless of their parliamentary privileges.

Parliamentary privilege in Malaysia isn't limited by where actions or statements occur; instead, it
hinges on whether they are part of "parliamentary proceedings." This means that the protection isn't
confined to activities within the Parliament building. For instance, if a parliamentary committee
travels to investigate an accident scene, any comments or actions made during that investigation are
considered part of a "parliamentary occasion."

In the case of R v Secretary of State for Trade ex parte Anderson Strathyclyde (1983), a
broader definition of "Proceedings in Parliament" was established, encompassing not just debates
but also questions in the House, committee discussions, and any matters related to parliamentary
affairs. This expansive definition highlights the wide scope of activities protected by parliamentary
privilege.

On the other hand, Rivilin v Bilainkin (1953) indicated that if something is not related to
parliamentary business or isn't officially posted on the parliamentary notice board, it may not enjoy
the protection of parliamentary privilege. The right of privilege generally applies only to matters
that have been officially debated in Parliament and doesn't extend to repeating or discussing
parliamentary matters outside its context.

An illustrative example is Abdul Rahman v D.R. Seenivasagam (1966), where an MP accused a

government minister of wrongdoing within Parliament but later repeated these accusations outside
of it. The MP was sued for defamation and lost the case, illustrating that parliamentary privilege
doesn't shield MPs when they take matters discussed in Parliament and reiterate them outside,
particularly if it leads to defamation claims. In essence, parliamentary privilege is closely tied to
parliamentary proceedings and doesn't provide MPs with immunity when they extend
parliamentary discussions or engage in unrelated activities outside of their parliamentary duties
-In Malaysia, the right of freedom of expression during parliamentary trials, except for one
provision relating to sedition, is absolute. Concerning his parliamentary words, no civil or
criminal action can be taken against an MP for defamation or breach of the Penal Code, the
Official Secrets Act, or any other criminal law.

-However, under Article 64(4) of the Federal Constitution, proceedings in Parliament are
not exempted from sedition prohibition..Sedition refers to actions or speech that incite rebellion, violence, or
hostility against the government or authorities. It involves promoting hatred, contempt, or disaffection
towards the government, often with the aim of destabilizing or overthrowing

- Mark Koding v PP (1983)

o An MP was accused of sedition when he proposed the closing of Chinese
and Tamil schools in Parliament. Therefore, for a parliamentary speech
that is deemed seditious, an MP may be prosecuted.
- The Houses of Parliament can clear the visitor gallery of their visitors or forbid
the publication of their reports as part of their freedom of speech. Till they have been
officially sent to Parliament, bills or committee reports can be placed on the
embargo.
- The Speaker may order unparliamentary words to be removed from the record and
expunged. Disobedience can amount to Parliament's contempt for such orders.

In Malaysia, Parliament has the authority to set its own rules and procedures. When issues arise,
such as complaints about someone's rights being violated or disagreements, a special committee
known as the Committee of Privileges investigates these matters fairly, gathering witnesses and
records to make informed decisions.

Parliament enjoys exclusive control over how it conducts its business, and it isn't bound by the
same rules as regular courts. This means that Parliament can operate in its own way without being
restricted by the typical principles of natural justice, civil or criminal procedures, or rules of
evidence, making it difficult for regular courts to intervene.

When the Committee of Privileges completes its investigation, it can make recommendations to
Parliament. Ultimately, the final decision rests with Parliament, and if someone is found at fault,
Parliament can take actions like reprimanding them, imposing imprisonment for up to 60 days, or
issuing fines of up to RM1000.

These parliamentary privileges in Malaysia follow the principles of English law and are governed
by the Standing Orders and the common law of the Houses of Parliament (Privileges & Powers)
Act 1952. Courts cannot challenge Parliament's decisions and must respect the principles
established by English law, as outlined in Article 63(1) and Article 72(1) of the Malaysian
Constitution.

In the case of Fan Yew Teng v Government of Malaysia, it was determined that Article 63(1)
prevents judicial inquiries into the disqualification of a Member of Parliament (MP). A similar
situation occurred in a State Legislative Assembly, where an Assemblyman questioned his
disqualification from his party, leading to the loss of his seat. The key conclusion was that the
decision made by the Dewan Rakyat (the lower house of Malaysia's Parliament) regarding the
disqualification of its members is final and not subject to review by the courts.
•.
Problems Associated with Parliamentary Privileges

The concept of "proceedings in Parliament" in Malaysia encompasses discussions, questions, and

all activities conducted by members within parliamentary meetings and committees, although it
lacks a specific definition. However, it has limitations. In the case of Rivilin v Bilainkin (1953), it
was clarified that the privilege protecting parliamentary notices does not extend to defamatory
notices unrelated to parliamentary matters. Similarly, if correspondence doesn't pertain to
parliamentary discussions, it may not be considered part of these proceedings, as demonstrated in
G.R. Strauss.

Notably, parliamentary privilege doesn't extend to statements made outside Parliament, as

evidenced by Lim Kit Siang v PP. Furthermore, some argue that the parliamentary system's
methods sometimes run contrary to the principles of natural justice, fairness, and due process, with
bodies like the Committee of Privileges operating without strict adherence to typical legal rules.

One contentious issue is the potential misuse of the freedom of speech privilege, where MPs may
say things within Parliament that they wouldn't say outside, leading to calls for its curtailment or
correction. Additionally, Art 63(4) limits the extent of parliamentary privilege, particularly
regarding offenses under certain laws like the Sedition Act 1948
 Exceptions to the operation of Parliamentary Privilege
• It is necessary to remember that the legislation does not cover the following conditions
on parliamentary privileges.
• Casual chat in Parliament. Such a discussion is not considered to be part and parcel of
"Parliamentary proceedings." Examples of "Parliamentary hearings" would include feedback
to debates and committee discussions, oral questions; responses to parliamentary
questions; voting; tabled parliamentary questions.
• Behavior within Parliament's precincts that do not have any connections with legislative
proceedings.
• Correspondence between constituents and MPs. Professional privilege, as opposed to
legislative privilege, would cover this. In cases not protected by absolute privilege, this
privilege gives an MP a small amount of protection. It is part of the standard defamation
rule.
• Unofficial accounts of parliamentary hearings in a newspaper.
• An interview with a member of parliament on TV, radio or in the newspaper.
• Disclosures by the MP of a subject protected by the Official Secrets Act in a newspaper
report.
The position of MPs & outside interests
• MPs are expected to freely discharge their duties from persons or interest groups outside
Parliament without unfair interference or inappropriate interference.
• Although this is what an MP is supposed to do, the fact is that an MP faces immense
pressure from both within the Parliament and outside Parliament. For instance, party
managers are likely to exert pressure on MPs by using the party whip system and other
methods to seek power and leverage over their members. Pressure comes from outside of
Parliament at times.
• It is challenging to decide where legitimate pressures end and where inappropriate or
unreasonable pressure starts, based on these two forms of pressure (inside and outside
Parliament).
• All in all, the wrong side of the line will be something that constitutes or could indicate
resistance, coercion, or blackmail. Both of these would amount to Parliament's contempt and
would thus be punishable by the House (s).
Possible reforms on Parliamentary Privilege
• The person against whom a complaint is lodged should have the right to attend the
complaint hearings, make representations and call witnesses, and request counsel and
legal assistance. If this were applied, the definition would be perceived as following the
'natural justice' laws. In other words, Parliament's legislation on contempt needs to be
harmonized with the rule of law and natural justice.
• At the very least, there should be means to avoid or fix what is seen as a misuse of, in
particular, the parliamentary right of freedom of expression and debate.
 • Recourse to the criminal jurisdiction of the House should be limited to only serious
situations. Punishment forces should also be used as sparingly as possible.
• Courts should be reluctant to deny or accept records that may influence the legal process's
outcome, and therefore individual rights, as evidence.
• There is a need for the provisions of Art 63(4) to be re-studied, which has reduced
the Implementation of the theory or definition referred to in Article 63(2) of the
Constitution. For example, no person charged with an offense under a law passed under
Article 10(4) of the Sedition Act 1948 shall be subject to the principle.
• The word "contempt of Parliament" needs to be granted a legislative meaning.
The standard of conduct in public life expected from MPs
• Selfishness: Public office holders should make decisions exclusively concerning public
relations.
• Integrity: Public office holders should not put themselves under any financial or moral
obligation. Other responsibilities that can impact them in the execution of their official
duties to outside persons or organizations.
• Objectivity: In conducting public enterprise, including making public appointments,
public office owners should make judgments on the merits of awarding contracts.
• Accountability, integrity & leadership, transparency. For instance, when appropriate,
reveal their private interests. In other terms, members need the House to register their
interests.
Conclusion:
• While all the members and officers of Parliament are entitled to certain privileges and
immunities in the exercise of their parliamentary duties, it is essential to note that there is
an air of antiquity about the law of Privileges in Parliament.