B. Methodology of the Research

We consulted the Standing Orders of other Parliaments and also directed three specific questions to ten Parliaments. Of the ten Parliaments, only five responded. The questions were:

• does your Parliament have rules in regard to powers, privileges and parliamentary immunities?

• if yes. please forward them to us

• if no, how does your Parliament deal with matters of abuse of members privilege especially abuse of freedom of speech by members?

C Findings of the Research

Australia (House of Representatives)

The House of Representatives (House) does have provisions relating to parliamentary privileges of Members. Privilege refers to the special rights and immunities which belong to the House. its committees and Members. These rights and immunities allow the House to meet and carry out its constitutional mandate without obstruction or fear of prosecution. Breach of privilege refers to the violation of any of the special rights and immunities which the House holds and enjoys in its corporate capacity and its Members on behalf of the citizens whom they represent. Contempt is a general power that the House enjoys to punish and is not restricted to the punishment of breaches of known rights or immunities. A breach of privilege is by its very nature contempt, but an action can constitute contempt without breaching any specific right or immunity.

In the Australian Parliament, privileges are provided for under section 49 of the Constitution. In terms of this section, the House acquired the powers. privileges and immunities of the House of Commons (UK) as at 1 July 1901, until such time that the Australian Parliament passed a new Act on privileges. Until 1987, with the enactment of the Parliamentary Privileges Act of 1987 (Act), the powers, privileges and immunities which obtained in the Australian Parliament remained those as practiced in the UK House of Commons.

The Act provides the House with the means to enforce the observance of privileges and immunities. The House has the power to discipline Members who are found to have committed a breach of privilege or contempt. The disciplinary measures are meted out in terms of section 7 of the Act which makes provision for the following:

• requiring an apology - public if appropriate;

• exclusion from the precincts of Parliament;

• imposing a fine;

• committing a person to prison.

A Member may raise a matter of privilege at any time during a sitting of the House. He or she must be prepared to move a motion without notice, immediately or subsequently, declaring that a breach or contempt has been committed or referring the matter to the Committee of Privilege (Committee). The Speaker may postpone the matter for further consideration and report to the House later or may give an opinion immediately on whether a prima facie case of contempt or breach of privilege exists. If a prima facie case exists, he or she refers the matter to the Committee for examination and report.

During a period when the House is not sitting, a Member may bring to the attention of the Speaker that a matter of privilege has arisen since the last sitting of the House and which he or she proposes should be referred to the Committee. If the Speaker is satisfied that a prima facie case of breach of privilege exists and the matter requires urgent attention, she or he must refer it to the Committee and report the referral to the House at its next sitting.

The Committee of Privilege

To deal with issues of privilege, the House appoints a Committee of Privilege (Committee) at the beginning of each Parliament. The Committee is established in terms of Standing Order 216. It consists of the Leader of the House or his or her nominee, the Deputy Leader of the Opposition or his or her nominee and nine other Members. The practice is normally to appoint a backbench Member of considerable parliamentary experience to the Committee.

The mandate of the Committee is to investigate and report on complaints of breach of privilege or contempt referred to it by the House under Standing Order 51 or by the Speaker under Standing Order 52, or any other matter referred to it in accordance with a resolution of the House 1.

The Committee has authority not only to inquire into the specific matter referred to it, but also the facts relevant to the matter. It can report on matters arising during or as a result of its inquiry.

In practice the Committee writes to the persons from whom it wishes to receive evidence to make written submissions. After considering the written submissions, the Committee may request the person to appear before it. The Committee has the power to compel persons to appear before it and to require that documents be produced.

Since 1987, it has been the practice of the Committee to permit witnesses to be accompanied by an adviser when giving evidence. Normally, witnesses have chosen to be accompanied by lawyers, but at other times they have been accompanied by a Member's assistant or another Member. Although witnesses are free to consult with their advisers when giving evidence, the advisers are not permitted to make submissions or to question other witnesses themselves.

The Committee usually hears evidence in private. However, the minutes of proceedings of the Committee are always attached to its reports to the House.

Reports of the Committee

A report of the Committee usually makes a finding on whether or not a breach of privilege or contempt of the House has been committed. The Committee normally recommends on what action, if any, should be taken. However the final decision lies with the House.

Canada (House of Commons)

Introduction

The Constitution Act of 1867 specifies that the privileges of the British House of Commons are transferred to Canada. Section 18 of the Constitution Act provides that the privileges, immunities and powers enjoyed and exercised by the House and its Members shall be such as defined from time to time by an Act of Parliament. However, the Canadian House of Commons (House) has not codified its parliamentary privileges in law or its rules.

The privileges, immunities and powers are also embodied in sections 4 and 5 of the Parliament of Canada Act. Section 4 reiterates that the House of Commons and its Members enjoy and exercise such privileges as stipulated at the time of the passing of the Constitution Act of 1867. Section 5 stipulates that the privileges, immunities and powers stated in section 4 are part of the general law and shall in all courts taken notice of judicially in all Canadian courts.

Manner of dealing with abuse of privilege

Standing Order 48 details the manner in which a question of privilege is raised and considered. It stipulates that whenever a matter of privilege is raised, it shall be taken into consideration immediately, if it arises during the sitting of the House. Any claim that a privilege or contempt has been committed may be raised by means of a question of privilege.

It is the Speaker's duty to determine whether, in the matter raised, a prima facie case of breach of privilege exists. She or he may rule immediately or reserve a decision to consider the matter and return to the House later with a decision or ruling.

If the matter arises outside the House, the Member making the claim of breach of privilege must first give one hour's written notice to the Speaker before he or she raises the matter in the House.

If the Speaker rules there is a prima facie case of breach of privilege, the House immediately considers a motion from the Member who raised it. The motion usually seeks to refer the matter to the Standing Committee on Procedure and House Affairs (Standing Committee) for further inquiry. It is given precedence over all Orders of the Day and debate on it concludes with a vote on the motion. If the motion is defeated, no further action is taken.

The rules do not provide for penalties for breach of privilege and it is therefore up to the House to recommend an appropriate remedy.

In the case of an abuse of freedom of speech enjoyed by Members, the House could recommend that an apology be made or could suspend the Member from the service of the House for a specified period.

The Standing Committee on Procedure and House Affairs

If the motion on a matter of privilege is adopted by the House, its terms are implemented by the Standing Committee. The Standing Committee is entitled to order the production of documents and to compel witnesses to appear before it.

Report

The Standing Committee reports on its findings, with recommendations to the House. The House may adopt a motion endorsing the findings and recommendations. The result could be an order of the House that a specific action or measures be taken or implemented.

In Germany, the matter of privilege has its source in the German Constitution (Basic Law for the Federal Republic of Germany). The privileges, immunities and powers of Parliament are enshrined in Article 38 (1) of the Constitution. This Article provides that Members "shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience". This provision covers all the basic powers of Members for parliamentary participation, such as freedom of speech, the right to vote in plenary and the freedom to join a political group within the Bundestag.

In terms of Article 46 of the Constitution, Members may only be held to account or arrested for a punishable offence with the permission of Parliament unless they are arrested in the very act of committing the offence. The permission of the Bundestag is required for any other restriction or limitation of a Member's liberty.

In practice, at the beginning of each Parliament. the Bundestag grants a general permission for preliminary investigations to the prosecution authority to conduct an initial investigation against any Member suspected to have committed a criminal offence, except insults of a political nature.

The Constitution protects freedom of speech and no Member may be subjected to court proceedings or disciplinary action for a speech made in the Bundestag or in any of its Committees. However, this does not extend to defamatory insults.

Manner of dealing with abuse of privilege

In regard to matters of privilege, the Speaker of the Bundestag has sole responsibility for exercising disciplinary powers against Members during the plenary sitting. He or she must judge on whether a breach of privilege has occurred. The Speaker also decides whether to intervene when there is a breach of discipline in the Bundestag and what measures, if any, should be taken.

Zambia (National Assembly)

The Zambian Parliament does not have rules with regard to privileges, immunities and powers of the National Assembly and its Members. It has an Act of Parliament, the National Assembly (Powers and Privileges) Act, which deals with the matter.

Manner of dealing with abuse of privilege

When a breach of privilege has been raised the Speaker considers the matter to determine whether a prima facie case exists of a breach of privilege. If the Speaker rules that a prima facie case exists against a Member. the matter is referred by a House resolution to the Committee on Privileges, Absences and Support Services (Committee) for consideration and report.

The Committee on Privileges, Absences and Support Services

The Committee, in its deliberations. gives the person alleged to have breached a privilege an opportunity to be heard.

When the Committee has concluded its deliberations on a matter. it reports to the Speaker with recommendations on the appropriate action to be taken. The Committee, where it finds there is a breach of privilege, can recommend any of the following:

• reprimand

• admonition

• suspension and loss of income for a specific period

• fine

Report

The Speaker tables the report of the Committee before the House for its consideration, if the matter is serious. Where the matter is straightforward in terms of the rules of the House or the Act of Parliament on the powers and privileges of the House, the Speaker makes a ruling. The House may by resolution direct the Speaker to reprimand the Member or suspend him or her from the service of the National Assembly as permitted by the Act.

Kenya (National Assembly)

The immunities, privileges and powers of the House are dealt with in terms of the National Assembly (Powers and Privileges) Act (Act) of 1952.

Manner of dealing with abuse of privilege

The Committee of Privileges (Committee) may, on its own initiative or in response to a complaint made by any person. investigate an alleged breach of the Assembly's Code of Conduct by a Member or any conduct which is claimed to have been intended or likely to reflect adversely on the dignity or integrity of the House or its Members.

The Committee of Privileges

The Committee is made up of the Speaker and ten other Members of the House, and is chaired by the Speaker. In terms of section 2 of the Act, the committee is authorised to regulate its own proceedings and procedures.

The disciplinary measures that the Committee can recommend are:

• reprimand

• admonition

• suspension

• fine

Report

The Committee must after its inquiry submit a report of its findings and recommendations to the House. After the report has been tabled, the House considers the report and its recommendations, and by a resolution decide on appropriate disciplinary action against the Member concerned.

Concluding remarks

Each of the countries studied, except Germany, has a Committee to investigate claims of abuse of parliamentary privilege and report on its findings with recommendations.

The form disciplinary measures taken is either prescribed in the Acts of the various Parliaments or lest to each House.

The Committees are, in all the countries, either provided for in the Constitution, or an Act of Parliament or the Rules. It is in these instruments that the procedure to deal with a matter on abuse of privilege is outlined.