Right to speech Vs. Parliamentary privileges

As we know that our motherland has constitutional ascendancy, instead our parliament has some privileges as we belong to a Parliamentary democratic system. Article 78 of our supreme charter ensures Parliamentary privilege in its each syllable. In addition, sub-art. (5) empowers legislative body to enlarge these privileges by an Act of Parliament. Sub-arts. (1) to (4) guaranteed immunities for Parliament, MPs, its committees and even its officials to exercise liberties in respect of saying anything, powers relating to regulation of procedure, conduct of business, maintenance of order, vote, any publication under parliamentary authority from judicial action. Even Art 78(2) affirmed that no court has jurisdiction to scrutiny MPs function within the ambit of Parliamentary powers.

However, our legislature enjoys these immunities from the beginning of its Parliamentary history. Sometimes it invokes debate with civil society and court. We witnessed rat race between the House of Commons and English court on the ground of privilege. The scenario is little bit different in our territory because our court can strike down a legislation passed by the parliament by virtue of constitution even if it passed under the authority of Art. 78(5). Apart from powers conferred by Art. 78, Supreme Court can explore the validity of an action relating with privilege.

It is the constitutional right to the parliamentarian that they can say anything in exercising their parliamentary duty. The constitution does not impose any restriction in this regard whereas it furnishes a shopping list of limitation to exercise right to speech. However, our lawmakers habitually misused the constitutional notion of free speech. Often the ruling party members attack the opposition and vise versa. Even they do not hesitate to deliver colloquial speech to slur posthumous founder of both the leading parties. Though these words are not subject to judicial action but MPs have an obligation to exercise their privilege reasonably. Normally, they expense a mentionable time in parliament either to admire their own party leaders or to show their verbal power to fright and insult the opposition.

Further, it is evident that lawmakers of our legislature usually cannot tolerate their criticism. Repeatedly, they show severe reaction toward their critics. Sometime they do this intrusively as we seen it toward Prof Abdullah Abu Sayeed. They want to summon Prof Sayeed before the Parliament for asking him and also demand to render apology from nation since they represent the nation. Legislators claim to do this on the basis of a fabricated newspaper report without investigating the statement what Prof Sayeed was actually said.

Though, Art. 1 sec. 5 of the U.S constitution has a provision to punish both members and nonmembers for disorderly behaviour and contempt of congress, which obstruct parliamentary proceeding or inquiry, however, Art. 78(2) does not confer any such power to the parliament to punish a nonmember for contempt which had done outside the precincts of the House and which has no effect on parliamentary proceeding. In a situation like this court can interfere the immunity by interpreting the controversial act and its effect on the function of the House of the Nation. Nevertheless, Rule 313 of the Rules of Procedure of Parliament authorizes the Speaker to direct any nonmember to leave the vicinity of the House.

Hence, if Prof Sayeed tells the alleged statement (though it is not) yet the House has no power to call him or to convict him by virtue of Parliamentary privilege. Because he made his statement beyond parliament’s precincts and his statement probably not obstruct to perform parliament’s duty. His speech does not fall within the domain of Parliamentary privilege. Because “in a democratic society there is always a social and political imperative for freedom of speech and expression and Parliament should not be oversensitive to public criticism” as it said by famous jurist Mahmudul Islam in his book Constitutional Law of Bangladesh.

Furthermore, freedom of speech and expression is a fundamental right to the citizens of Bangladesh, which is guaranteed by the supreme will of the people of this soil. Hence a rule of procedure made by the parliament under the authority of Art. 75  cannot barred a fundamental right and it must conform the requirement of Art. 26. Otherwise, an aggrieved can challenge that rule by virtue of Art. 7 and 26 and the court can examine the validity of such a rule in spite of the privilege.

Frequently our representatives tell that Parliament is supreme among others. They may be forgotten that each principal organ of the state is equal and Constitution is supreme in this land. They should bear in mind that it is the constitution, which is the ultimate will of the people and this constitution confers the powers to assassinate any decision of Parliament to the court, which is inconsistent with peoples’ will.