In recent times, there have been several instances of persons referred to the privileges body of Parliament for all sorts of breaches. The current situation of reporter Andre Bagoo begs the question: If he is deprived of the right to practise his profession, as a penalty for a breach of privilege, can he take the matter to court? Even if such a penalty is not imposed, it is important for all who exercise the constitutional right of free expression and freedom of the press to know the extent of those rights. Under English law, parliamentary supremacy prevailed, and Parliament was said to be the "highest court in the land."
In contrast, Article 2 of the Constitution of Trinidad and Tobago states: "This Constitution is the supreme law of Trinidad and Tobago, and any other law that is inconsistent with this Constitution is void to the extent of the inconsistency." Unlike England, which never had a written constitution, it is arguable that this provision in T&T overrides parliamentary supremacy, and so the exercise of those enshrined rights in the constitution, freedom of thought and expression and freedom of the press must not be unduly restricted by parliamentary process.
Thus, although the Standing Orders say that the Speaker's decision "upon any point of order shall not be open to appeal," in Randolph Toussaint v AG, a case from St Vincent, the Privy Council had no hesitation in doing just that, ie considering a challenge to the Speaker's decision, and in overturning the decision of the Speaker to disallow a parliamentary record to be used in court proceedings.
The PC agreed with the European Court (of Human Rights) that they would not accept that pursuing a claim for breach of one's fundamental rights could be made subject to the absolute discretion of the Speaker of a Parliament.
In an article entitled "Aspects of Parliamentary Privilege in the Caribbean," Justice Adrian Saunders of The Caribbean Court of Justice considered the issues at length and several cases in the Commonwealth Caribbean. In India, for instance, there have been judicial rulings that make a distinction in the role the court plays. In the Indian Case of Raja Ram Pal v The Speaker (2007) 3 SCC 184, 11 Indian MPs were expelled from Parliament for contempt. The MPs challenged their expulsion in the Supreme Court. The Parliament asserted that they had the exclusive right to take disciplinary action against the MPs, and that in this regard they were not answerable to the judiciary.
They refused to appear before the court. The Supreme Court considered provisions in the Indian Constitution similar to those of the T&T Constitution, and held that it did have jurisdiction to determine the content and scope of parliamentary privilege; and that if an allegation is made by a citizen that he has been unconstitutionally deprived of his fundamental rights, as a consequence of the exercise of privilege, the court had the right and duty to examine this issue, notwithstanding the claim to privilege.
Where proceedings of Parliament are likely to have been tainted, on account of substantive or gross illegality or unconstitutionality, they could still be reviewed by the judiciary. In a Canadian case in 1996, the court considered the nature of parliamentary privilege, and commented that it could not be said that the courts have no role to play in the debate which arises where individual rights are alleged to conflict with parliamentary privilege. While the court recognised that under the British system of parliamentary supremacy, the courts arguably play no role in monitoring the exercise of parliamentary privilege, the situation with the Canadian courts was different, given their written constitution.
So, "to prevent abuses cloaked in the guise of privilege" from trumping legitimate constitutional interests, the courts must inquire into the legitimacy of a claim of parliamentary privilege. The courts thus could question whether any claimed privilege exists. Even in T&T our courts have not been backward in considering the issue. Hamel-Smith J, in one case, declared that parliamentary privileges are to be exercised, subject to the provisions of the constitution. He drew a distinction between a suit brought in private law against an MP and one founded in public law. In a private suit, an MP may be entitled to the immunity granted by section 55 of the constitution.
The State could not take shelter under that immunity to protect itself from the claims of a citizen complaining about the infringement of his constitutional rights. All of these cases considering parliamentary privilege, from India, Canada and the Caribbean, point to a trend whereby our courts in countries with a constitution will not allow dubious claims of parliamentary privilege to prevent it from protecting the fundamental human rights of a citizen. Where a person's rights to liberty, property and expression are concerned, the courts will be vigilant. Further, in the unlikely event that the penalties imposed by Parliament are severe, there is always the separation of powers doctrine: is sentencing a matter for Parliament or the courts?
