Contempt of Parliament: A Critical Analysis

Contempt of Parliament: A Critical Analysis

Introduction:

Constitutionally all three organs executive, legislature, and judiciary are independent to each other but acting together in collaboration for good governance. They all must respect each other's constitutional role. This mutual respect generates self-restraint, which is in-built in the Constitution. Whilst Parliament is entitled to perform its constitutional role, it must also allow other two organs, particularly the Judiciary to scrutinize whether parliamentary acts are within the constitutionally prescribed legal bounds. The motivation to a judicious mind and due process in performing parliamentary functions would go a long way in establishing good governance. However, the theory of contempt of parliament and judicial accountability are discussed below.

Contempt of Parliament:

In many jurisdictions governed by a parliament, Contempt of Parliament is the crime of obstructing the parliament in the carrying out of its functions, or of hindering any Member of Parliament in the performance of his or her duties.

Actions which can constitute contempt of Parliament vary, but typically include such things as:

• deliberately misleading a House of Parliament or a parliamentary committee;
• refusing to testify before, or to produce documents to, a House or committee; and
• attempting to influence a Member of Parliament, for example, by bribery or threats.

In some jurisdictions, a House of Parliament may declare any act to constitute contempt, and this is not subject to judicial review. In others, contempt of Parliament is defined by statute; while Parliament makes the initial decision of whether to punish for contempt, the person or organization in contempt may appeal to the courts.

Any action taken by either a Member of Parliament or a stranger which obstructs or impedes either Parliament in the performance of its functions, or its Members or staff in the performance of their duties, is contempt of Parliament. Examples of contempt include giving false evidence to a parliamentary committee, threatening a Member of Parliament, forgery of documents and attempting to bribe members. The Commons has the power to order anyone who has committed a contempt of Parliament to appear at the Bar of the House and to punish the offender. If the offence has been committed by an MP he or she may be suspended or expelled.[1]

Contempt of parliament in West minister system[2]:

In countries which have a Westminster-style system of parliamentary government, the Parliament is also protected by laws of contempt, just as the courts are, and for much the same reasons. Criticism which tends to undermine the authority of parliament, or to ridicule the institution of parliament or to discredit it, or anything which would interfere with the functioning of parliament, is contempt.

For example, in 1947 an English newspaper alleged that some MPs were drunk in parliament; that was held to be contempt of parliament. In 1956, another English newspaper published an MP's private telephone number and suggested that anyone who disagreed with his views should phone him and tell him so; this was held to be contempt of parliament, as it was an improper attempt to deter the MP from doing his duty. In 1987, Papua New Guinea's Electoral Commissioner said that people who were criticizing an educational video which he had commissioned were doing so because they wanted a crooked election; this was held to be contempt of parliament, because many of those criticizing him were MPs, and his remarks reflected upon their honor.

Normally, criticism of individual MPs should be safe from contempt, as long as it does not bring the institution of parliament into disrepute. The extent to which this is permitted will naturally vary from one society to another. Robust criticism of leaders which is acceptable in Melanesia or Europe may be quite unacceptable in Polynesia or Africa.

In England, where this legislation originated, the present position was clearly stated in 1965, by an MP who was opposing another MP's motion of complaint about newspaper criticism. He said: "If it were passed, it would be regarded as an attempt by parliament to interfere with freedom of comment in the press, on television, on the radio and on the public platform on the actions of Members of Parliament who, by seeking and accepting membership of the house, have laid themselves open to comment, criticism, ridicule, satire, whether in good or bad taste, and ruthless and relentless comment. I think this is the kind of comment upon which the free functioning of democracy completely depends.

Examples of Contempt of Parliament:

 Australia

In the Commonwealth of Australia, the Parliamentary Privileges Act 1987 defines contempt of Parliament as follows:

Conduct (including the use of words)...[which] amounts, or is intended or likely to amount, to an improper interference with the free exercise by a House or committee of its authority or functions, or with the free performance by a member of the member's duties as a member.

Contempt decisions by the House of Representatives or the Senate are thus subject to review by the Federal Courts. Punishments are limited under the Act to (for individuals) a fine of $5,000 and/or six months' imprisonment, or (for corporations) a fine of $25,000.

In the Senate, allegations of contempt are heard by the Privileges Committee, which decides whether or not a contempt was committed, and if so, what punishment is to be imposed. In practice, there have been very few times when a hearing determined that anyone was in contempt, and on no occasions has anyone been punished beyond a warning, with an apology and/or appropriate remedial action.[3]

Canada

The power to find a person in contempt of Parliament stemmed from Section 18 of the Constitution Act, 1867 in which "The privileges, immunities, and powers to be held, enjoyed... shall not confer any privileges, immunities, or powers exceeding those at the passing of such Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof."

Rarely has Parliament invoked its power to find a person in contempt. The most recent example involved RCMP deputy commissioner Barbara George who was cited for contempt for deliberately misleading a parliamentary committee over the Scandal. She was ultimately found in contempt but was not punished further than the motion itself.[4]

Hong Kong, China

Contempt of the Legislative Council is a criminal offence.

United Kingdom

In the United Kingdom, it has been alleged that arresting a member of Parliament in the course of carrying out his duties may constitute contempt of Parliament. MPs accused of Contempt of Parliament may be suspended or expelled.[5]

In UK, Contempt’s comprise any conduct (including words) which improperly interferes, or is intended or likely improperly to interfere, withthe performance by either House of its functions, or the performance by a member or officer of the House of his duties as a member or officer. The scope of contempt is broad, because the actions which may obstruct a House or one of its committees in the performance of their functions are diverse in character. Each House has the exclusive right to judge whether conduct amounts to improper interference and hence contempt. The categories of conduct constituting contempt are not closed. The following is a list of some types of contempt: [6]

— interrupting or disturbing the proceedings of, or engaging in other misconduct in the presence of, the House or a committee

— assaulting, threatening, obstructing or intimidating a member or officer of the House in the discharge of the member's or officer's duty

— deliberately attempting to mislead the House or a committee (by way of statement, evidence, or petition)

— deliberately publishing a false or misleading report of the proceedings of a House or a committee

— removing, without authority, papers belonging to the House

— falsifying or altering any papers belonging to the House or formally submitted to a committee of the House

— deliberately altering, suppressing, concealing or destroying a paper required to be produced for the House or a committee

— without reasonable excuse, failing to attend before the House or a committee after being summoned to do so

— without reasonable excuse, refusing to answer a question or provide information or produce papers formally required by the House or a committee

— without reasonable excuse, disobeying a lawful order of the House or a committee

— interfering with or obstructing a person who is carrying out a lawful order of the House or a committee

— bribing or attempting to bribe a member to influence the member's conduct in respect of proceedings of the House or a committee

— intimidating, preventing or hindering a witness from giving evidence or giving evidence in full to the House or a committee

— bribing or attempting to bribe a witness

— assaulting, threatening or disadvantaging a member, or a former member, on account of the member's conduct in Parliament

— divulging or publishing the content of any report or evidence of a select committee before it has been reported to the House.

  Additionally, in the case of members:

— accepting a bribe intended to influence a member's conduct in respect of proceedings of the House or a committee

— acting in breach of any orders of the House

— failing to fulfill any requirement of the House, as declared in a code of conduct or otherwise, relating to the possession, declaration, or registration of financial interests or participation in debate or other proceedings.

 Penalties: the present position

  1.  Historically the power to adjudge contempt is linked to the power to commit to prison. In the eighteenth and early nineteenth centuries committal to the custody of the Serjeant-at-Arms, or to prison, was a regular punishment. The House of Commons has power to imprison until the end of the current parliamentary session, however long or short that may be. The House of Lords has power to imprison indefinitely.

  2.  Alternative punishments are formal admonishment or reprimand. The Commons used to have power to fine. This power was last used in 1666. It was called into question by the courts in the eighteenth century and should be regarded as lapsed. The House of Lords still retains the power to fine, but it is open to doubt whether, in practice, the means exist to enforce payment. Contempt’s by members may also be punished in the Commons by suspension (and loss of pay) for a period up to the end of the Parliament, and by expulsion. The House of Lords does not have power to suspend a member permanently. A writ of summons, which entitles a peer to `a seat, place and voice' in Parliament, cannot be withheld from a peer. A peer can be disqualified temporarily either by statute or at common law, for reasons such as bankruptcy or being under age. Whether a peer can otherwise be suspended within the life of a single Parliament is not clear.

  3.  The 1967 committee concluded that the present penal powers were inadequate to fulfill their necessary role in the protection of Parliament. They recommended that the House of Commons should be empowered to impose a fine, and to commit to prison for a period unaffected by the end of a session but subject to a maximum prescribed by law. The 1977 committee considered that, if there were power to fine, the p power to imprison should cease.[7]

United States:

Contempt of Congress

Contempt of Congress is the act of obstructing the work of the United States Congress or one of its committees. While historically the bribery of a senator or representative was considered "contempt of Congress," in modern times a person must refuse to comply with a subpoena issued by a Congressional committee or subcommittee — usually seeking to compel either testimony or the production of documents — in order to be considered in "contempt of Congress."

In the late 1790s, contempt of Congress was considered an "implied power" of the " legislature. Early Congresses issued contempt citations against numerous individuals for a variety of actions. Some early instances of contempt of Congress included citations against:

• Robert Randal, for an attempt to bribe Representative William Smith of South Carolina in 1795.
• William Duane, a newspaper editor who refused to answer Senate questions in 1800.
• Nathaniel Rounsavell, another newspaper editor for releasing sensitive information to the press in 1812.

In 1821, the Supreme Court issued its decision in Anderson v. Dunn,  which held that Congress' power to hold someone in contempt was essential to ensure that Congress was "... not exposed to every indignity and interruption that rudeness, caprice, or even conspiracy, may mediate against it. The historical interpretation that bribery of a senator or representative was considered contempt of Congress has long since been abandoned in favor of criminal statutes. In 1857, Congress enacted a law which made "contempt of Congress" a criminal offense against the United States. The criminal offense of "contempt of Congress" sets the penalty at not less than one month nor more than twelve months in jail and a fine of not less than $100 nor more than $1,000.[8]

Examples of rare contempt of Parliament cases[9]

RCMP deputy commissioner Barbara George was cited for contempt of Parliament for deliberately misleading a parliamentary committee. Here are some other examples contempt citations in Canada:

• 1913. Businessman R.C. Miller is found in contempt of Parliament after refusing to answer questions from the public accounts committee and “at the bar” of the House of Commons. He was imprisoned for four months until the parliamentary session ended.

• 1976. A committee finds former MP Augusta Coquette’s attitude “intemperate and irresponsible”, chastising him after he claimed that many parliamentarians had obtained undue financial considerations. 

• 2003. Former privacy commissioner George Radwanski was cited after the government operations committee ruled he misled them with his testimony regarding allegations of wrongdoing. The speaker ruled there was a prima facie question of privilege but the matter was dropped after Radwanski apologized to the House.

Privilege Versus Contempt:

Any disregard of or attack on the rights, powers and immunities of the House and its Members, either by an outside person or body, or by a Member of the House, is referred to as a “breach of privilege” and is punishable by the House.  There are, however, other affronts against the dignity and authority of Parliament which may not fall within one of the specifically defined privileges. Thus, the House also claims the right to punish, as a contempt, any action which, though not a breach of a specific privilege, tends to obstruct or impede the House in the performance of its functions; obstructs or impedes any Member or Officer of the House in the discharge of their duties; or is an offence against the authority or dignity of the House, such as disobedience of its legitimate commands or libels upon itself, its Members, or its Officers. “The rationale of the power to punish contempt, whether contempt of court or contempt of the Houses, is that the courts and the two Houses should be able to protect themselves from acts which directly or indirectly impede them in the performance of their functions.”   In that sense, all breaches of privilege are contempt of the House, but not all contempt is necessarily breaches of privilege.[10]

Contempt, as opposed to “privileges”, cannot be enumerated or categorized. As Speaker Sauvé explained in a 1980 ruling, “… while our privileges are defined, contempt of the House has no limits. When new ways are found to interfere with our proceedings, so too will the House, in appropriate cases, be able to find that contempt of the House has occurred.[11]”

Just as it is not possible to categorize or to delineate what may fall under the definition of contempt, it is not even possible to categorize the “severity” of contempt. Contempt may vary greatly in their gravity; matters ranging from minor breaches of decorum to grave attacks against the authority of Parliament may be considered as contempt’s. [12] 

By far, most of the cases of privilege in the Canadian House relate to matters of contempt challenging the perceived authority and dignity of Parliament and its Members.  Other cases have involved charges made between Members  or media allegations concerning Members. The premature disclosure of committee reports and proceedings has frequently been raised as a matter of privilege. However, in those instances where no specific individual has been identified, the matter has not been pursued even though it might appear to involve contempt.[13]

The reluctance to invoke the House’s authority to reprimand, admonish or imprison anyone found to have trampled its dignity or authority and that of its Members appears to have become a near constant feature of the Canadian approach to privilege. Though the power of the House to imprison remains, it is difficult to foresee circumstances arising that would oblige the House to invoke it.  Members have proven themselves to be fairly thick-skinned when it comes to criticism, even when it appears hard and unfair. They seem willing to endure such treatment from the press and other media rather than raise a potential conflict between the authority of the House and the freedom of the press. There is, however, no doubt that the Canadian House of Commons remains capable of protecting itself from senseless abuse should the occasion ever arise.[14]

In only a very few cases in Canadian practice has the House, or a procedure committee report, recommended a punishment. A 1976 committee report did chastise a former Member (August Choquette) who claimed that many parliamentarians had obtained undue financial considerations. After the former Member maintained his allegation under questioning, the committee concluded that his attitude was intemperate and irresponsible, but recommended no further consideration be given to the matter. In the 1987 Parry case, the Committee also did not recommend punishment and the Member’s apology to the House put an end to the matter. In the 1996 Jacob case, the Committee noted that while the Member’s actions were ill advised, they did not amount to contempt or a breach of parliamentary privilege. This was also true in the 1998 case concerning the integrity of the House and the Speaker, following comments that were made on the Speaker’s ruling on displaying the flag in the House. In its report, the Standing Committee on Procedure and House Affairs found that the statements attributed to the Members quoted in the Ottawa Sun newspaper did not bring into question the integrity of the House or the Speaker.[15]        

Tension between judicial independence and judicial accountability[16] Judicial accountability[17] Accountability and transparency are the very essence of democracy. Not one public institution, or for that matter even a private institution dealing with the public, is exempt from accountability. Hence, the judicial arm of the government too is accountable. In an interview with India Today in 1996 the former Chief Justice of India, Justice Verna, was asked his opinion regarding making the judiciary more accountable. The Chief Justice’s reply was: It’s long overdue. With the increase in judicial activism, there has been a corresponding increase in the need for judicial accountability. There is a perception that the people are doubting whether some of us in the higher judiciary satisfy the required standards of conduct. Since we are the ones laying down the rules of behavior for everyone else, we have to show that the standard of our behavior is at least as high as the highest by which we judge the others. We have to earn that moral authority and justify the faith the people have placed in us. One way of doing this is by codifying judicial ethics and adhering to them (emphasis added). However, judicial accountability is not the same as the accountability of the executive or the legislature, or any other public institution. This is because the independence and impartiality expected of the judicial organ is different from other agencies. Judges are accountable to the extent of deciding the cases before them expeditiously, in public (unless for special reasons), fairly, promptly, and with reasons for their decisions. Their judgments are also subject to scrutiny by the appellate courts. No doubt legal scholars and the public—including the media—may comment on the judgment. If judges misconduct themselves, they are subject to discipline by the mechanisms provided under the law. Beyond these parameters, they should not be accountable for their judgments to any others. Judicial accountability stretched too far can seriously harm judicial independence. It must be stressed that the constitutional role of judges is to decide on disputes before them fairly and to deliver their judgments in accordance with the law and the evidence presented before them. It is not their role to make disparaging remarks about parties and witnesses appearing before them or to send signals to society at large in intimidating and threatening terms, thereby undermining other basic freedoms like the freedom of expression. Another source of concern is the manner in which contempt of court powers are used to instill fear. When judges resort to such conduct, they lose their judicial decorum and eventually their guarantees of judicial independence. They open the door to public criticism of their conduct and bring disrepute to their institution that can lead to a loss of confidence in the system of justice in general. Respect for the judiciary cannot be extracted by invoking coercive powers, except in extreme cases. The judiciary must earn respect by its performance and conduct. No doubt judges too have freedom of expression. The Basic Principles require judges to exercise their freedom of expression “in such a manner as to preserve the dignity of their office and the impartiality and independence of the judiciary”. Similarly, the Beijing Principles state that judges are entitled to freedom of expression “to the extent consistent with their duties as members of the judiciary”. If follows that judges do not have the right to say anything at all, either in the adjudicating process or even in their extrajudicial capacities. Particularly in the adjudicating process they must be circumspect with their words, to maintain their objectivity and impartiality. In 1996 a Superior Court Judge of Quebec in Canada dealing with the sentencing of a woman found guilty of second degree murder in the death of her husband berated a jury and made insensitive remarks about women and Jews. The remarks were: When women ascend the scale of virtues, they reach higher than men [but] when they decide to degrade themselves, they sink to depths to which even the vilest men could not sink… Even Nazis did not eliminate millions of Jews in a painful or bloody manner; they died in the gas chamber without suffering. Those remarks caused an enormous controversy in Quebec. Many including the media called for removal of the judge. Women’s rights associations were in uproar. The judge did not resign. The matter went before the Canadian Judicial Council. By a majority of 4 to 1, the Inquiry Committee of the Council found the judge unfit for office. They went on to say that the judge undermined public confidence in him and strongly contributed to destroying public confidence in the judicial system. This recommendation went before the full Judicial Council headed by the Chief Justice. By a majority of 22-7 the Council recommended to the Minister to move Parliament for the removal of the judge. The judge eventually resigned. [18] In another recent case, again in Canada, a judge of the New Brunswick Provincial Court was removed for derogatory comments about the residents of a particular district, while presiding over a sentencing hearing. The majority of the disciplinary panel found her comments incorrect, useless, insensitive, insulting, derogatory, aggressive and inappropriate. That they were made by a judge made them even more inappropriate and aggressive. The Supreme Court of Canada upheld the finding. Soon after the judge made those comments she apologized to the residents in open court during the proceedings on an unrelated matter. The apology did not mitigate the damage done.[19] In December 2001 the New South Wales Court of Appeal in Australia delivered a judgment criticizing the conduct of a District Court Judge as having fallen “far too short of acceptable judicial behavior” that it might lead to an apprehension of bias.[20] The appeal judges added that her conduct was disturbing and “comments totally unnecessary”, and that the judge “made little to maintain the proper decorum of either the court or her”. They described one of her statements as “disgraceful and totally unjudicial”. The author of an opinion column in an Australian daily reporting on this case asked, “How on earth do people like the judge concerned get appointed to courts in this country?” It is not known whether any disciplinary action was taken against that judge. In South Africa during October 1999, in sentencing a 54-year-old man to seven years imprisonment in the Cape Town Court for raping his 16 year old daughter the judge said that while raping his daughter was “morally reprehensible” the act was “confined” to his daughter and that therefore the man did not pose a threat to society. He further said that the girl had a good chance of recovery. In a country where it is said that there is a rape committed every 36 seconds and where the law provides a minimum sentence of life imprisonment unless there are mitigating circumstances, these pronouncements unleashed a wave of anger from women’s rights groups. The prosecutor instantly filed a notice of appeal. In the aftermath, newspapers reported that a Parliamentary Committee had summoned the judge to appear and explain himself over the sentence. This began a counter protest from judicial circles, as such action by Parliament would amount to encroachment onto judicial independence. The wisdom of the Minister of Justice in a public statement quelled the situation. He said, inter alia: In terms of our constitution, the judiciary is independent from both the legislative and the executive. The principle of separation of powers and the independence is strongly entrenched in our constitution. The judiciary as an organ of State had to be accountable in its actions, but this did not mean that judges should appear before a parliamentary committee to explain their judgments. These are just a few recent instances where judges have been taken to task by disciplinary tribunals, appellate courts and the public when they abuse their judicial power and undermine public confidence in the justice system. The excessive use of coercive powers like contempt of court has been a concern in some countries. It was a serious problem in Malaysia a few years ago, when lawyers were committed and sentenced. The manner in which this power was invoked summarily by the Supreme Court of Sri Lanka in the Michael Fernando case earlier this year brought the Court into severe criticism from various quarters, including myself. It obviously had a chilling effect on the public’s access to justice and freedom of expression. It even intimidated the legal profession. I am glad that the government has responded to the concerns expressed and has set up a committee to consider the need for legislation on the parameters of contempt of court. That an unrepresented lay litigant attempting to seek justice in the highest court of the land, however misconceived his grievance may have been, could be convicted and sent to prison for one year is beyond belief. The worst form of injustice in any civilized society is injustice perpetrated through the judicial process. It becomes aggravated when the court is the highest in the land, as there will be no further appeals and moreover it remains a dangerous precedent for lower courts. Another objectionable feature in that case was that the Chief Justice was a respondent to the petition. However ill conceived that move by the petitioner, as a matter of principle and in accordance with section 49 (3) of the Sri Lanka Judicature Act, the Chief Justice should have disqualified himself. It was his presence to which the petitioner seems to have objected. He was quite right. The often-cited judgments of Lord Atkin from 1936 on a proper balance of the two competing interests, and that of Lord Denning in 1968 on how courts should exercise restraint in too readily invoking contempt powers are worthy constant reminders to judges all over the Commonwealth. Lord Atkin said: The path of criticism is a public way: the wrongheaded are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.  Lord Denning said: This is the first case, so far as I know, where this court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us, but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticize us will remember that, from the nature of our office we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be it own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done. So it comes to this. Mr Quintin Hogg has criticized the court, but in so doing he is exercising his undoubted right. The article contains an error, no doubt, but errors do not make it a contempt of court. We must uphold his right to the utmost.[21] I know of another case in the sixties when a lay litigant having lost her case threw her books at the three judges of the Court of Appeal of England & Wales. The books flew past the head of the presiding Judge, Lord Denning. All Lord Denning did was direct the usher to lead her out of the Court. She exclaimed, “I am surprised that your Lordships are so calm under fire”. The conduct of Lord Denning in those circumstances demonstrated highest judicial integrity and compassion. While the executive arm is often apprehensive of judicial independence, the judicial arm is often apprehensive of judicial accountability. I have in my reports observed that judicial accountability is not inimical to judicial independence. Though judicial accountability is not the same as accountability of the executive or legislative branches of the government, yet judicial accountability without impinging on judicial independence will enhance respect for judicial integrity. The Basic Principles do not provide for judicial accountability save for a provision on procedure for judicial discipline. In South Africa, recently the judges themselves drafted legislation to provide for a judicial complaint commission. There was, however, a dispute between the executive and the judiciary as to the composition of the commission. The judges wanted the composition entirely of sitting judges. The executive felt that it should not be left entirely with the judges as that would negate transparency. I recommended to the government that the composition should be left entirely to the judges, and if necessary retired judges could be included. The judges who took the initiative to draft the legislation for this mechanism should be entrusted to self-regulate it for an initial period of at least seven years. Thereafter the effectiveness of the mechanism could be reviewed. The government has conceded and the commission will be composed entirely of judges. The need for a separate complaint mechanism for judges is the subject of debate, in many countries, including the United Kingdom, New Zealand, Australia, Ireland and India. In some jurisdictions informal internal mechanisms have been set up. But these have been found to be unsatisfactory. Remarks[22] Judges must also remember that the insulation provided to protect their independence and impartiality has been founded on public policy. Public policy can change with times. The discerning public of today, using fast improving information technology, has high expectations of the judiciary. If judges, by their performance and conduct, do not meet those expectations the insulation will slowly but surely be reduced, again via public policy. Last year the Marga Institute conducted an inquiry into the judicial system of Sri Lanka, and published its findings in a book entitled A system under siege. On fairness and impartiality of the system the perceptions of court users were as follows: Almost 84% (83.98%) of all the respondents did not think that the Judicial System of Sri Lanka was always fair and impartial. In fact, one out of every five thought that it was never fair and impartial. Similarly 87% of the Court Users did not believe that the Judicial System was always fair and impartial. The Remand prisoners constituted the group among Court Users with the least amount of trust in the impartiality and fairness of the Judicial system of the country with 49% asserting that, it was never so. On incorruptibility the perceptions of court users were:  Among the respondents as a whole, the prevalent view (83.93%) was that the Judicial System of Sri Lanka was corruptible, with a mere 16.06% asserting that it is NEVER corruptible. These figures must be of serious concern to the nation. However, among the stakeholders, the judges formed the single largest group that believed the system was always fair and impartial. The independence of the judiciary is founded on public confidence—in essence, public trust. Without that confidence and trust, the system cannot command the respect and acceptance that are essential to its effective operations. It is therefore important that a court or tribunal should be perceived to be independent and impartial, and the test should include that perception. As said by a former Chief Justice of Canada, this is the lifeblood of constitutionalism in democratic societies. It is not the confidence or perceptions of the judges that matters. The right to an independent tribunal is the right of the consumers of justice. It is the protective right of all human rights. It is neither a right nor a privilege of the judges. This must be made clear to judges. Judges asserting that they are independent and impartial. It is how the public perceives their performance and conduct that matters. Judges must remember that public confidence in the system is the ultimate safeguard of their independence. As Shimon Shestreet said in his classic work Judges on trial (at p. 392): Written law if not supported by the community and constitutional practice, can be changed to meet political needs, or can be flagrantly disregarded. On the other hand, no executive or legislature can interfere with judicial independence contrary to popular opinion can survive..

Bangladesh Parliament versus Judiciary[23]

Recently a public debate has emerged on the sovereign status of Bangladesh Parliament. The debate is triggered by the decision of the Supreme Court not to allow its Registrar to appear before the Parliamentary Standing Committee on Law, Justice and Parliamentary Affairs despite a formal invitation for such appearance. The Chair of the Committee has argued that Parliament is sovereign and its standing committee is competent to issue such an invitation. Whether the Supreme Court should send its representative to parliamentary standing committees is not commented here. Instead, the central issue of the debate on the sovereign status of Parliament is briefly examined below.

Critical Analysis[24]

functional competence particularly in law-making. This is because the written constitution is the supreme law and parliament is made to operate within the set constitutional limits. Parliament under a written constitution does not possess any intrinsic law-making power, which actually comes from the constitution. This derived law-making power of parliament, however extensively and passionately one may construe, must be understood and exercised within, not beyond, the constitution. Such a parliament and its acts once defy and surpass the constitutional limit, they became unconstitutional and suffer from legitimacy crisis. This status of a parliament under a written constitution differs markedly from that of a parliament not created by, and functional under, a written constitution.

For example, Britain has no written constitution and its Parliament functions in the absence of any written constitutional limitations whatsoever. In other words, the British Parliament is a sovereign law-making body, whereas the US Congress, being operational under a written constitution, is not sovereign. The landmark decision of the US Supreme Court in Mar bury v Madison (1803) declared an act passed by US Congress unconstitutional, thus establishing the judicial review power of the Supreme Court. The constitution vests Parliament with law-making power subject to its constitutionality. Whether a parliamentary act is constitutional is determined by the apex court by virtue of, and in exercising, its judicial review power. The apex court is the final arbitrator of the constitutional validity of any parliamentary act. Parliament under a written constitution therefore does not possess sovereign law-making power, which is contingent upon and subject to constitutionality.

Bangladesh has a written Constitution, which is the supreme law of the land. Bangladesh Parliament is a procreation of, and functions under, the Constitution. The Constitution imposes express limitations and specific conditions on the law-making functions of Parliament. Article 7 prevents parliament from making any law and/or amendment which is inconsistent with, or repugnant to, the Constitution. It is legally binding for Parliament to make law in compliance with the Constitution. A failure to comply would render such act/amendment of Parliament invalid to the extent of inconsistency or repugnancy. Parliament itself is not authorized to determine the constitutionality of its own act. The Judiciary, being the guardian and custodian of the Constitution, is entrusted to ascertain the constitutionality of any parliamentary act. The interpretation of all constitutional provisions is exclusively within the domain of the Judiciary. Any competent court, particularly the Supreme Court, is empowered to judge whether a particular act of Parliament is consistent or not with the Constitution. This constitutional arrangement is designed to ensure the separation of powers with appropriate checks and balances between the government organs to avoid excesses and abuses of powers and functions.

Bangladesh Parliament is a non-sovereign law-making body by virtue of the restriction in Article 7 of the Constitution. Nor is it immune from any judicial review of the constitutionality of its act by the apex judiciary. It is the exercise of judicial power that held the parliamentary eighth amendment to Article 100 of the Constitution creating six permanent branches of the High Court Division unconstitutional in Anwar Hussein Chowdhury v Bangladesh in 1989. The recent decisions of the Supreme Court proclaiming the unconstitutionality of the fifth and seventh amendments of Parliament are ample manifestation of the fact that Bangladesh Parliament is not mandated to enact any law that it deems appropriate but subject to an important condition of its constitutional validity, which is determined by the Judiciary by exercising its judicial review power. These parliamentary amendments surpassed the permissible law-making power under Article 7. By enacting these acts, Parliament had elevated itself to a status over and above the Constitution and ultimately suffered from legitimacy crisis. In view of the overt constitutional restriction on law-making and the judicial reviews of parliamentary acts referred to, any claim to sovereign parliament is misleading at its best and ignorant at its worst.

In a participatory democratic system, parliament ought to possess and exercise transcendent power for democratic governance pursuant to the constitutional rule of law. Historically, the situation in Bangladesh is somewhat different. Political power exercised by incumbent governments has steadily created a strong executive, which is inclined to enhance its stature by controlling parliament that more often than not toes to the executive-centric party line. It is imperative that Parliament performs its functions in compliance with the specified constitutional requirement. Parliament must understand the ethos and spirit of the constitutional rule of law. Unfortunately, Bangladesh has witnessed the enactment of many parliamentary acts not in response to genuine needs but for political ends. These acts have hamstrung the integrity of good governance and dignity constitutionalism in Bangladesh. Many past major political impasses with far reaching stultifying effect on constitutional development and responsible government may be attributable to many unconstitutional acts of Parliament.

Conclusion:

Constitutionally all three organs executive, legislature, and judiciary are independent to each other but acting together in collaboration for good governance. They all must respect each other's constitutional role. This mutual respect generates self-restraint, which is in-built in the Constitution. Whilst Parliament is entitled to perform its constitutional role, it must also allow other two organs, particularly the Judiciary to scrutinize whether parliamentary acts are within the constitutionally prescribed legal bounds. The motivation to a judicious mind and due process in performing parliamentary functions would go a long way in establishing good governance.[25]

Parliament is constituted on the basis of political power expressed through popular votes of the majority. Once constituted, Parliament becomes the law-making body of the entire Bangladesh and its functional legitimacy no longer comes from any political source. Such legitimacy comes from a legal source the Constitution. The Constitution is a sacred and authenticated norm setter for parliamentary functions to achieve and preserve an orderly Bangladesh. It is not a convenient tool to be used for the perpetuation of political power. Parliament is not a touchstone so that anything it touches or does becomes inviolable. In view of the principle of constitutional supremacy, separation of powers, and checks and balances embodied in the Constitution, it is pretentious to argue that Bangladesh Parliament is a sovereign law-making body like the British Parliament.[26]The Rules of Parliament is completely silent about the term 'contempt of parliament' and its procedure. If the parliament is to use this tool, it has to invoke its inherent jurisdiction and the house may, on the basis of report of a standing committee, pass resolution of imprisonment or fine against some persons for contempt of it. However, one has to bear in mind that this parliamentary power is neither conclusive nor supreme. As the Constitution of the country is written and the balance of power is maintained by the Supreme Court under the doctrine of judicial review, the ultimate say will come from the Supreme Court as to the true nature, limit and extent of the parliament's power of contempt.

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[1] Contempt of parliament-Wikipedia, the free encyclopedia, at http://en.wikipedia.org/wiki/contempt_of_parliament visited on 27January,2011.

[2] http://www.thenewsmanualsvolume3/volume3_68htmlparlialemt

[3] Supra note1, p.2.

[4] Supra note 1. p.2.

[5] Supra note 1.p.2.

[6] Parliamentary Privilege at http://www.parliament.the-stationary-office.co.uk/pa/jt199899/jtselect/jtpriv. last visited on 24 Jan,2011.

[7] Supra note 6. Last visited on 25 Jan, 2011.

[8] Contempt of congress at http://en.wikipedia.org/wiki/contempt_of_congress last visited on 27 Jan, 2011.

[9]Examples of  Rare contempt of Parliament Cases,10 April,2008, at http://www.canada.com/topics/news/story.html, last visited on 20 Jan, 2011.

[10] Privileges and Immunities :Privileges Versus Contempt (2000),paras 1-4 at

     http.: /www2.parl.gc.ca/marleaumontpetit.documentviewer. last visited on 22 Jan,2011.

[11] Ibid., p.2.

[12] Ibid,pp3-4.

[13]Ibid., p5.

[14] Ibid.

[15] Ibid.

[16] Tension between judicial independence and judicial accountability, 9 June, 2008 at http://www/article2.org/mainfile.php/0205/104 last visited on 15 Jan, 2011.

[17] Ibid, paras 3-14.

[18] ‘The Bienvanne Inquiry’, Canadian Judicial Council Annual Report 1996-97, p. 30.

[19] Moreau-Berube v New Brunswick (Judicial Council).

[20] Damjanovic v. Sharpe Hume & Co (2002) NSWCA 407.

[21] RV Metropolitan Police Commission Exparte Blackburn (No. 2) (1968) 2All ER 319 at      320 

                                                                    

[22] Supra note16,  paras .18-23.

[23] Prof. M Rafiqul Islam, Sovereignty debate, the daily star, Jan 22, 2011, p.22.

[24] Ibid.

[25] Ibid.

[26] Ibid.