Parliamentary Privilege

2019 SCMR 165 SUPREME-COURT-OF-CANADA Judicial Precedent

ScopeParliamentary privilege subject to a statute

Given that the Court had recognized that Parliamentary privileges had constitutional status, a statute must be interpreted in such a way that it did not implicitly abrogate these privileges

In such circumstances it was undesirable to adopt an interpretation to the effect that the Assembly implicitly considered a privilege unnecessary, thereby denying its existence

More was needed to abrogate a constitutional privilege

Without requiring express language in the statute, the modern approach to statutory interpretation did require clear, unequivocal legislative intent to abolish or modify Parliamentary privileges that were still necessary. [Minority view]

2019 SCMR 165 SUPREME-COURT-OF-CANADA Judicial Precedent

Scope and interpretationJudicial reviewScopeProvincial AssemblySecurity Guards of Provincial Assembly dismissed by the Speaker of the AssemblyDismissals were challenged before a labour arbitrator

Speaker objected to such challenge on basis that decision to dismiss guards was immune from review because of Parliamentary privilege over management of employees and Parliamentary privilege to exclude strangers

Arbitrator concluded that the dismissals were not protected by Parliamentary privilege, and therefore the challenge to dismissal could proceed

Question as to whether Speaker had established that Parliamentary privilege was necessary for Provincial Assembly to discharge legislative mandate and therefore dismissals should be immune from arbitrator's review]

[Per Karakatsanis, J, (Majority view): Dismissals under challenge were not protected by Parliamentary privilege and therefore were not immune from external review under the applicable labour relations regime

Although the Speaker was entitled to exercise his management rights and dismiss security guards for a just and sufficient cause, Parliamentary privilege did not insulate the Speaker's decision from review under the labour regime to which the guards were subject

Standard of review applicable to the decision of the arbitrator in the present case was correctness

Arbitrator correctly concluded that the Speaker's decision to dismiss the security guards was not subject to Parliamentary privilege

Speaker had failed to establish the necessity of Parliamentary privilege over the management of the guards

Admittedly, the guards performed some important tasks that were connected to the constitutional functions of the Assembly, including protecting it from security threats and helping to maintain decorum in the chamber, however, the Assembly did not require immunity from outside scrutiny of the general management of the security guards in order to discharge its constitutional functions

Management of the guards could be dealt with under ordinary law without impeding the Assembly's security or its ability to legislate and deliberate

Permitting the enforcement of basic employment and labour protections for the guards would not undermine the independence required for the Assembly to fulfil its constitutional mandate with dignity and efficiency

2019 SCMR 165 SUPREME-COURT-OF-CANADA Judicial Precedent

Scope and burden of proofCourts, jurisdiction ofJurisdiction of the courts with respect to Parliamentary privileges was narrow

Courts could only ascertain the existence and scope of such privileges and must give considerable deference to the view taken by legislative assemblies and their speakers of the scope of autonomy they considered necessary to fulfill their functions

Courts must rely on the necessity test to ascertain the existence and scope of privileges

Said test was concerned with a sphere of the legislative body's activity that would be excluded from the ordinary law

Onus was on the legislative assembly to show that the sphere of activity for which privilege was claimed was so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.

2019 SCMR 165 SUPREME-COURT-OF-CANADA Judicial Precedent

ScopeJudicial reviewBurden of proof

Party seeking to rely on the immunity from external review conferred by Parliamentary privilege bore the burden of establishing its necessity, that was, to demonstrate that the scope of the protection it claimed was necessary in light of the purposes of Parliamentary privilege

Such necessity test demanded that the sphere of activity over which the privilege was claimed be more than merely connected to the legislative assembly's functions

Immunity that was sought from the application of ordinary law must also be necessary to the assembly's constitutional role.

2019 SCMR 165 SUPREME-COURT-OF-CANADA Judicial Precedent

ScopeParliamentary privilege subject to a statute

When a legislative body subjected an aspect of privilege to the operation of a statute, it was the provisions of the statute that governed

While such provisions remained operative, a legislative body could not reassert privilege so as to do an end-run around the statute whose very purpose was to govern the legislature's operations

Parliamentary privilege should not be invoked to bypass the application of a statute enacted by the legislature to govern its own operation

Complying with its own enactments was not an impediment to the functioning of the legislature, and it could not be regarded as an intrusion on the legislature's privilege

Furthermore the relationship between the statute and privilege was determined through ordinary principles of statutory interpretation.

2019 SCMR 165 SUPREME-COURT-OF-CANADA Judicial Precedent

Scope and interpretationExercise of parliamentary privilegeJudicial review by CourtScope

Legislative bodies, including Provincial legislative assemblies, had inherent Parliamentary privileges that flowed from their nature and function in a Westminster model of Parliamentary democracy

Inherent Parliamentary privileges helped preserve the separation of powers and promoted the proper functioning of representative democracy, by protecting some areas of legislative activity from external review

However, the inherent nature of Parliamentary privilege meant that its existence and scope must be strictly anchored to its rationale

Courts had the role of determining whether a category of Parliamentary privilege existed and to delimit its scope, whereas it was for the legislative assemblies to determine whether in a particular case the exercise of the privilege was necessary or appropriate

Scope of Parliamentary privilege was delimited by the purposes it served, and extended only so far as was necessary to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly's work in holding the government to account for the conduct of the country's business

Since the courts could not review the exercise of Parliamentary privileges, even on grounds of fundamental rights and freedoms, they must ensure that the protection provided by a privilege did not exceed its purpose

Purposive approach must therefore be taken when assessing Parliamentary privilege claims

Such an approach helped to reconcile the privilege with the fundamental rights and freedoms, by ensuring that it was only as broad as was necessary for the proper functioning of a constitutional democracy.

2017 PLD 265 SUPREME-COURT Judicial Precedent

Arts. 62(1)(f), 66(1) & 184(3)Parliamentary privilegeScope

Constitutional petition before the Supreme Court seeking disqualification of Prime Minister for acquiring wealth and assets through corrupt and illegal practices and misuse of authority and indulging in money laundering

Prime Minister delivered a speech in the National Assembly to explain the financial sources that were used to purchase subject properties

Certain factual contradictions were found between the said speech and the statements provided by the Prime Minister himself and his children before the Supreme Court

Contention on behalf of Prime Minister that he could not be held liable for anything said in his speech in the National Assembly as the same was covered by Parliamentary privilege under Art.66(1) of the Constitution

Validity

Mere contradiction between the speeches of the Prime Minister and statements of his children did not prove any of his speeches false or untrue unless it was determined after examining and cross-examining both of them that their statements were correct and true

Where it was not determined that statements of Prime Minister's children were correct and true, no falsity could be attributed to the speeches of the Prime Minister

If at all, the speeches of the Prime Minister were sought to be used to incriminate him for declaring that he was not 'honest' and 'ameen', he had to be confronted therewith

Where no effort was made to prove the statements of Prime Minister's children to be true and correct, nor was the Prime Minister confronted with his speeches, it would be against the cannons of law of evidence to use such speeches against him

Since the speech of the Prime Minister could not be used against him, the question of availability of Parliamentary privilege under Art.66 of the Constitution became irrelevant.

2017 PLD 265 SUPREME-COURT Judicial Precedent

Arts. 66(1) & 184(3)Parliamentary privilegeScope

Constitutional petition before the Supreme Court seeking disqualification of Prime Minister for acquiring wealth and assets through corrupt and illegal practices and misuse of authority and indulging in money laundering

Prime Minister delivered a speech in the National Assembly to explain the financial sources that were used to purchase subject properties

Certain factual contradictions were found between the said speech and the statements provided by the Prime Minister before the Supreme Court

Contention on behalf of Prime Minister that he could not be held liable for anything said in his speech in the National Assembly as the same was covered by parliamentary privilege under Art.66(1) of the Constitution

Validity

Issue of parliamentary privilege was not relevant to the present case

Relevant speech made by Prime Minister was not just a speech made in the National Assembly but it was also an address to the nation because of live radio and television coverage of it

At least four or five microphones of different television companies including the official national television channel were placed on the desk of Prime Minister and a television camera was placed right in front of him when he had made that speech and that speech was broadcast and telecast live on the national hookup

Apart from that by making the speech the Prime Minister had merely utilized the floor of the National Assembly for advancing a personal explanation regarding a matter which was not even on the agenda of the National Assembly on the relevant day and was personal to himself and his family

Parliamentary privilege under Art. 66(1) of the Constitution was in respect of liability to any proceedings in any court in respect of anything said in the Parliament but in the present case the speech made by the Prime Minister was not the basis of any liability to any proceeding in a court and the speech was being referred to in the present proceedings only as a circumstance in a series of circumstances showing lack of honesty of the Prime Minister before the nation, before the representatives of the nation in the National Assembly and before the Supreme Court

Prime Minister was not being proceeded against for making the speech but said speech was being utilized in the present proceedings only for a collateral purpose to determine as to whether he had been making divergent statements on the same issue at different occasions or not and as to whether he had been honest in the matter or not.

2013 PLD 66 QUETTA-HIGH-COURT-BALOCHISTAN Judicial Precedent

Breach of privilege by member of ParliamentInitiation of proceedingsJurisdiction and scope

Constitution in no way prevented the legislature from proceeding against its own members for the breach of privilege or any rule, hence, jurisdiction over members exclusively belonged to the House.

1993 SCMR 1019 SUPREME-COURT Judicial Precedent

Parliamentary Privilege

Reference to parliamentary proceedings as aid to construction of statute does not constitute a breach of parliamentary privilege.

1958 PLD 397 SUPREME-COURT Judicial Precedent

Parliamentary Privilege Parliamentary privilege-Background-Constitution of Pakistan, Arts. 56 & 89