The Inviolability of Parliament

The unanimous decision Parliament took this week that tough action be taken against a group of party thugs who disrupted the proceedings of Parliament last week must be applauded as a defence of the sanctity of the institution of Parliament.

Parliament is a colonial heritage, but so is the institution of the State. We have come to accept the State as a necessary means of organising society. As long as this holds, Parliament is a central pillar of the modern State and its sanctity must be defended.

In a constitutional democracy or a State founded upon respect for the rule of law, Parliament provides the main means by which State authority is legitimised. Composed of elected members from constituencies across the country, Parliament provides the main forum by which a cross-section of public opinion is mediated and factored into law and policy. No policy of government has legal validity and is ready for implementation unless and until it has been translated into law, debated and adopted by Parliament.

Parliament also plays a watchdog role, holding the executive branch accountable. As an elected branch of government, Parliament ensures that the government of the day does not abuse its electoral mandate, does not ride roughshod on the rights of individuals and the people, and provides input and feedback on policies and decisions made by the government.

For Parliament to fulfill its core and incidental functions, its deliberative processes must remain sacrosanct. Unlike other branches of government, Parliament is supposed to allow for absolute freedom of speech among its members. Freedom of speech is critical to the deliberative spirit of Parliament. To protect that freedom, Parliament is guaranteed the right to regulate its own procedure. This right is supposed to be exercised not to limit freedom of speech but to enhance and maximise it.

To underscore the significance of freedom of speech in Parliament, parliamentary proceedings cannot form the basis of defamation suits. Whatever is said by members of Parliament in parliamentary sessions and meetings is covered by this immunity.

In addition, members of Parliament are also immune from arrest while on the premises of Parliament or going to or leaving Parliament. It does not matter whether the crime was committed outside parliamentary premises or whether the crime had nothing to do with the execution of a parliamentary function. The immunity also means that no member of Parliament can be prevented from attending, traveling to or entering the premises of Parliament.

News reports of a group of party thugs disrupting proceedings of Parliament have thus rightly been received with horror and condemnation. So must reports of a group of party thugs preventing some members of Parliament from entering the august house be similarly condemned. The first group, assuming they were different, abused another key feature of parliamentary proceedings-that they are open to the general public. The second group sought to impose their worldview on a member of Parliament who is by law required to serve according to his or her conscience.

It is one thing for members of Parliament to behave in an unparliamentary manner: that is a choice made by members themselves in exercise of their parliamentary freedom. Parliament has procedures for enforcing discipline against its members so that the institutional integrity and deliberative spirit of the house is upheld. It is another thing for members of the public, whatever their credentials in matters related to criminality and violence, to violate the sanctity of Parliament and its members. This is an affront to parliament and the country as a whole. This is an offence that strikes at the heart of democracy.

We have not seen this display of disregard for the institution of Parliament before. It must not be allowed to happen again. This means, first and foremost, that Parliament must see to it that the resolution it took condemning these acts and calling for tough action is implemented. Secondly, law enforcement agencies must investigate this violation and prosecute all those involved. Thirdly, the implicated political parties must publicly condemn these acts and take disciplinary action against the culprits.

With respect to the third point, it is not a plausible explanation that the offending individuals are not card carrying members of the implicated party. We know that most political parties in Malawi do not have records of members in good standing. Party cadets are randomly marshalled for specific purposes irrespective of long-term party allegiance. What is required is that all parties must recognise and accept that they cannot deploy a group of people to violate the sanctity of Parliament. In this particular case, the implicated party has to cooperate with law enforcement agencies to ensure that whoever masterminded these offensive acts and the actual perpetrators thereof are dealt with in accordance with the law. 

*Danwood Chirwa is Professor of Law, University of Cape Town, South Africa.


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