Article 56 – PRIVILEGE IN THE LEGISLATIVE HOUSES OF TRINIDAD AND TOBAGO – The National Parliament and the THA Assembly’s Chamber
(Parliamentary Privilege) PRIVILEGE IN THE LEGISLATIVE HOUSES OF TRINIDAD AND TOBAGO – The National Parliament and the THA Assembly’s Chamber
Attorney-at-law
Martin Anthony George & Co.
Attorneys-at-law
(Research Assistance provided by
Darrell Bartholomew, Attorney at Law)
DISCLAIMER: Please note this does NOT constitute LEGAL ADVICE or LEGAL CONSULTATION, which you should get from your own Attorneys and this is being shared with the general public for the purposes of information and discussion ONLY.
INTRODUCTION
Parliamentary Privilege is the protection from prosecution for actions such as defamation, contempt, and other types of proceedings, which may otherwise flow from words and actions in the normal course of everyday life and which would normally have been actionable in the Civil Courts of law.
Parliamentary privilege is a protection which applies to Members of Parliament and Senators and THA Assemblymen and THA Councillors involved in proceedings in the Houses of Parliament in Trinidad and Tobago, being the Lower House (House of Representatives) and the Upper House (The Senate) and also to proceedings in the Tobago House of Assembly Chamber.
A useful definition of Parliamentary Privilege may be found in Erskine May’s Treaties on the Law, Privileges, Proceedings and Usage of Parliament (24th edition, 2011), where at page 203 the author says:
“Parliamentary privilege is the sum of certain rights enjoyed by each House collectively as a constituent part of the High Court of Parliament; and by Members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals.”
Parliamentary privilege thus affords those who enjoy its protection, the ability and freedom to perform their duties without interference from outside of Parliament, to speak freely without fear of favour and to be able to bring to light, any deep dark secrets or dirty deeds of persons in public life, without fear of repercussion and backlash from outside the Parliament for things said and done therein. This allows Members of our National Parliament in T&T and the Members of the Tobago House of Assembly to debate matters of national importance, and to effectively conduct investigations when necessary.
Parliamentary privilege also allows information from whistle-blowers to be brought forward and revealed on the parliament floor, even if it involves allegations involving other Members sitting there in the Parliament or the Assembly Chamber or other public officials. It is however incumbent upon the person using the cloak of Parliamentary Privilege to make allegations of wrongdoing by individuals or other entities, to ensure that they can prove those allegations; otherwise it descends into the realm of pure scandal, bachanaal and recklessness.
Who can forget the Emailgate allegations made by Dr. Keith Christopher Rowley on the Parliament floor, against Members of the other side? Who can forget the scandalous, dangerous and outrageous allegations made by Vernella Alleyne Toppin against the Honourable Dr. Keith Christopher Rowley? Last week we saw on the floor of the Tobago House of Assembly Chamber, the Chief Secretary Farley Augustus, making allegations about a Whistleblower who supposedly has information surrounding an ongoing Police and Criminal investigation into what is being referred to as Audiogate, which is based upon a leaked audio of a discussion amongst high-ranking THA Officials allegedly about a plot to use public funds in a propaganda campaign.
Prime Minister Dr. Keith Christopher Rowley, who was named in the whistleblower’s revelations, has since accused the Honourable Chief Secretary of using the cloak of Parliamentary Privilege to engage in “Witness Tampering” and possible “Perversion of the Course of Justice”. The point of the matter is that while there is the protection of Parliamentary privilege, it is not something which ought to be abused, nor is it to be used wantonly, recklessly and capriciously.
Rights such as the freedom of speech and the right of self-regulation all fall under the umbrella of Parliamentary privilege. Parliamentary privilege also covers the media to an extent, as the media is able to report on what is said in Parliament, without being itself exposed to claims for Defamation and or Contempt or other forms of civil litigation. It is important to note though, that Parliamentary privilege as it relates to the media, is only qualified privilege as opposed to the absolute privilege which Parliamentarians enjoy.
Parliamentary privilege as a principle is common to countries based on the Westminster system of government. This system of government was first developed in the United Kingdom, and this system is a staple of most, if not all of the countries which were former territories of the British empire and now largely comprise the Commonwealth of Nations. The name “Westminster” is derived from the Palace of Westminster in London where both the UK House of Commons and the House of Lords meet, and Parliamentary privilege in the UK extends to both of these Houses.
The influence of the Westminster system and the concept of Parliamentary privilege can be seen worldwide, as Parliamentary privilege applies to the House of Commons in Canada, the House of Representatives and the Senate in Australia, and the National Assembly and the National Council of Provinces in South Africa. Here in Trinidad and Tobago, our Parliament, which consists of the House of Representatives and the Senate, is covered by the principle of Parliamentary privilege, and so is the Assembly Legislature of the Tobago House of Assembly (THA). This means that members of the House of Representatives (Members of Parliament as we call them), members of the Senate (known as Senators), and members of the THA’s Assembly Legislature (Assemblymen), are able to speak freely in Parliament and in the Assembly Legislature, in carrying out their duties cloaked with the cover of Parliamentary Privilege.
It is to be noted that the scope of Parliamentary privilege does not encompass a Parliamentarian or an Assemblyman making those same statements or speaking on those particular matters outside of the Parliament and outside of the Assembly Chamber and this is the reason we often see persons; who are the targets of allegations or accusations made against them by Members using the cover of Parliamentary Privilege; threatening and daring those said Members to repeat the scurrilous and scandalous allegations outside the walls of the Parliament so that in such cases, it may be possible to establish liability for either civil or criminal proceedings against the maker of the statement.
LAW
Parliamentary privilege is enshrined in the Constitution of the Republic of Trinidad and Tobago, where Section 55 provides as follows:
“55. (1) Subject to the provisions of this Constitution and to the rules and standing orders regulating the procedure of the Senate and House of Representatives, there shall be freedom of speech in the Senate and House of Representatives.
(2) No civil or criminal proceedings may be instituted against any member of either House for words spoken before, or written in a report to, the House of which he is a member or in which he has a right of audience under section 62 or a committee thereof or any joint committee or meeting of the Senate or House of Representatives or by reason of any matter or thing brought by him therein by petition, bill, resolution, motion or otherwise; or for the publication by or under the authority of either House or any report, paper, votes or proceedings.
(3) In other respects, the powers, privileges and immunities of each House and of the members and the committees of each House, shall be such as may from time to time be prescribed by Parliament after the commencement of this Constitution and until so defined shall be those of the House of Commons of the Parliament of the United Kingdom and of its members and committees at the commencement of this Constitution.
(4) A person called to give any evidence before either House or any committee shall enjoy the same privileges and immunities as a member of either House.”
Section 55 (4) of the Constitution is of particular importance to public servants and other individuals who are on occasion called to give evidence as part of Committee proceedings in Parliament such as the Public Accounts Committee, the Committee on National Security, and the Committee on Public Administration and Appropriations, as it means that for the entirety of those Committee proceedings, they enjoy the same privileges, immunities and protections as Parliamentarians and Assemblymen in Trinidad and Tobago.
Section 3 of the House of Representatives (Powers and Privileges Act) Chapter 2:02 contains a similar provision to that of Section 55 of the Constitution. Section 3 of the Act states:
“3. No civil or criminal proceedings may be instituted against any member for words, spoken before, or written in a report to, the House or to a committee or by reason of any matter or thing brought by him therein by petition, Bill, resolution, motion or otherwise.”
In terms of the THA and its Assembly Legislature (the law making body), Section 70 of the Tobago House of Assembly Act Chapter 25:03 provides that:
“70. (1) Subject to the Rules and Standing Orders of the Assembly, there shall be freedom of speech in the Chamber of the Assembly.
(2) No civil or criminal proceedings may be instituted against any member or other person for words spoken before, or written in a report of, the Assembly or a committee thereof.
(3) In other respects, the powers, privileges and immunities of the Assembly, Members and committees of the Assembly, shall be such as may from time to time be prescribed by Parliament and until so defined shall be those that apply to the House of Representatives and to its members and committees.”
PARLIAMENTARY PRIVILEGE IN PRACTICE
(CV 2019-00460 Roodal Moonilal v The Attorney General of Trinidad and Tobago and the Speaker of the House of Representatives)
In a very interesting local case which tested the limits of Parliamentary Privilege (CV 2019-00460 Roodal Moonilal v The Attorney General of Trinidad and Tobago and the Speaker of the House of Representatives), the Claimant, the Member of Parliament for Oropouche East, was alleged to have made certain statements against the Prime Minister and the Member of Parliament for Laventille West, during the course of a Parliamentary debate. Mr. Moonilal was then referred to the Committee of Privileges for them to conduct an investigation into the possibility that the statements constituted a contempt for the House of Parliament. Two of the members of the Committee recused themselves from those proceedings and two temporary members were appointed to replace them, and as such, Mr. Moonilal alleged that the Committee was not properly constituted and further alleged that the Speaker of the House, having made particular statements in relation to him, was guilty of apparent bias. The position advanced by the Speaker in the Court proceedings was that the appointment of the temporary members fell within the scope of parliamentary privilege and so was not subject to review by the Courts. In dismissing the Claimant’s claim, the Court concluded that the decisions which were being challenged by Mr. Moonilal were covered by Parliamentary privilege, and so the Court was precluded from conducting a review of those decisions.
CV 2010-04909 Dr. Keith Christopher Rowley v Michael Annisette
In CV 2010-04909 Dr. Keith Christopher Rowley v Michael Annisette, the Defendant, at the time a Senator, accused Dr. Rowley, the Member of Parliament for Diego Martin West, of being involved in questionable dealings with the Chairman of NH International Caribbean, Mr. Emile Elias, in relation to the Landate Development Project, a private housing development project in Tobago, owned and/or under the control of Mrs. Sharon Rowley, the wife of Dr. Rowley. Some of the allegations made by Mr. Annisette included suggestions that Dr. Rowley was conducting himself improperly as a public official, and that building materials had been removed from the site of the Scarborough Regional Hospital to the site of the Landate Development Project. As part of the Court’s judgment in the matter, specific reference was made to the principle of Parliamentary privilege, as the statements which formed the basis of the claim for defamation were first made in the Senate on 1 October 2009 under the cover of Parliamentary privilege, and so the Defendant was protected from civil proceedings in that regard. However, Mr. Annisette caused those statements to be republished outside of the Senate on 8 October 2009 and on 9 October 2009, and on those two subsequent occasions, Parliamentary privilege did not operate to provide any protection to Mr. Annisette. The Court found Mr. Annisette liable for defamation in the form of both libel and slander, and awarded Dr. Rowley the sum of Four Hundred and Seventy-Five Thousand Dollars ($475,000.00) inclusive of aggravated damages.
The Rowley case is an excellent example of the limits of Parliamentary privilege, and how it operates with respect to the same statements made both inside and outside of Parliament. When Mr. Annisette made those statements inside the Parliament, he was protected by Parliamentary Privilege, however the moment he repeated them outside the walls of the Parliament, he lost that protection and thus was successfully sued in Defamation. It is clear therefore, that those who are afforded its powers, privileges and immunities, must be cognisant of the fact that it has its limits, and so Members of Parliament, Senators, and Assemblymen, must always be mindful of what they say outside of the hallowed halls of Parliament and the Assembly and must also realize that while their statements inside the Parliament and Assembly are protected, they still have a responsibility to ensure that they can prove those allegations and to ensure that they are not otherwise breaching any other Laws of the country in the process.
© 2023 MARTIN ANTHONY GEORGE & CO
Article #56 – PRIVILEGE IN THE LEGISLATIVE HOUSES OF TRINIDAD AND TOBAGO – The National Parliament and the THA Assembly’s Chamber.
(Parliamentary Privilege) PRIVILEGE IN THE LEGISLATIVE HOUSES OF TRINIDAD AND TOBAGO – The National Parliament and the THA Assembly’s Chamber