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Raffique Shah


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It's time to abolish Parliamentary privilege

February 12, 2006
By Raffique Shah

BESIDES the various statutory commissions that are deemed sacrosanct in our Constitution, the other institution that remains above the law, and which ever so often degenerates into boorishness if not outright lawlessness, is Parliament. According to the Constitution, the combination of the House of Representatives and the Senate forms the highest court in the country. This means that any law or order passed by these two bodies cannot be challenged in the courts. This is not strictly true, since there are and have been instances in which Parliament passed legislation that were at odds with the provisions of the Constitution. In such cases, judges have ruled that this "highest court" had violated the very Constitution it was meant to uphold. But this is more the exception than the rule.

I am not arguing that Parliament should be perfect in all its deliberations and decisions, or that its members should be all exemplars. One of the quirks of parliamentary democracy is there are no standards or qualifications required for any citizen to stand for election or nomination to either Chamber. One might argue, as CLR James did in his book "Every Cook Can Govern", that it does not take an intellectual to understand governance. But reality is the quality of persons who are elected or appointed parliamentarians allows for wholesale abuse of the privileges they enjoy. Parties often choose candidates whose only qualification is their subservience to the leaders. Some are chosen for their tart tongues that fail to connect with their minds.

The end result of the privileges extended to elected MPs and senators is that far too many use their freedom of speech to vilify ordinary citizens, to make serious allegations against people who have no recourse in law or anywhere else. Recently, Senate President Dr Linda Baboolal agreed with Senator Joan Yuille- Williams that Senator Wade Mark be referred to the Privileges Committee for making serious, unsubstantiated charges of wrongdoing by the complainant. However, although Mark made similar allegations against two ordinary citizens, Baboolal pointed out that matters relating to the latter could not be ventilated at the Committee's hearings. So while Yuille-Williams may be exonerated and Mark punished, it will not be for the latter's unwarranted attack on the characters of people who have no voice in Parliament or even in court.

Is this what was intended when, under the Westminster system, free speech and immunity from legal action, were granted to parliamentarians? I think not. But it's a provision that prevails in most law-making chambers. The question we need to answer, especially in view of the history of citizens being pilloried in the worst manner by the "honourable" men and women, is do we need this? I say a resounding "No!" We do not need to slavishly follow other systems, not even when-and this is true-their parliamentarians behave in as boorish a manner as ours. Either you give me the right to stand in the House or Senate and respond to my accuser, enjoying the same immunity (so I can dub him a "damn fowl t'ief"), or give me the right to sue him for his "drawers".

In similar vein, members of the judiciary enjoy privileges that belong to the 18th century, not to today's world in which it is almost impossible to find men and women of substance, not to add character, to allow them such immunity. In fact, the entire judicial system needs to be overhauled, the brandy having been watered down to sub-WASA standards! Why, if a judge is found to have consistently erred in his or her rulings, and in life-and-death matters at that, should he or she continue to sit and lord it over hapless victims of a skewed system? Surely we need to change the Constitution and make everyone accountable, especially those who hold the kind of powers that judges and magistrates do.

What I have shown thus far is that the Constitution, which ought to protect the weak from the strong, which should dispense equity in every instance, is far from perfect. It invariably works against the poor, the uneducated, people it was intended to serve. Some politicians see the solution in constitutional reform. What they really want is electoral reform. They want to have proportional representation (PR) instituted, believing that this would give them a better chance to win or hold power.

PR is a deadly weapon that is divisive by its very nature: it cements tribal and class lines that already exist, makes them even worse. PR is not about unity, as its proponents would have us believe. It's not even about better representation or greater equity. It's all about power, a case of "who has more race support will take the trophy". There are many other instruments we can use to make this a more just and equitable society. But first we must toss away this Constitution that turns sub-humans into tin-gods.

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