The first parliament session under the new government was met with considerable excitement during it’s first day on July 16, and we’re not referring to the Opposition’s walkout protest. This first session would also be an unprecedented one as the previously long entrenched government and opposition have swapped sides in our Houses of Parliament for the first time. As such, heated debates are expected to take place as the new government revisits our current laws in their attempts to revamp the system.
However, regardless of whichever parties are in power, MPs cannot do this without frank and open discussions. We take a look at the concept of parliamentary privilege and how it would help MPs create better laws.
How did this privilege come about?
Long story short, the concept of parliamentary privilege came from the UK.
Historically, our country has drawn most of its law from the UK and not surprisingly, as we’re a Commonwealth country. This particular privilege is said to date as far back (at least in writing) as the year 1689, written on a piece of paper called the ‘Bill of Rights’ along with other civil liberties which later became law in UK.
The Bill of Rights was introduced at that point in time because the UK Parliament was fighting for independence from the Monarch (the King). Back then, whatever the King said was pretty much law, so the ‘Bill of Rights’ introduced the Supremacy of Parliament and the individual (that’s you) over the King, regular schedule for parliamentary sessions, and free speech; amongst other things. Click here and here if you’d like to delve further into the history.
For the purposes of this article, when we say ‘Parliament’ we are referring to the Dewan Rakyat, also known as the lower house in the Parliament.
So what kind of privilege does an MP in Malaysia get?
In Malaysia, the privilege is found in Sections 3 and 7 of the Houses of Parliament (Privileges and Powers) Act 1952 reproduced as follows:
Freedom of speech and debate
This means that a court (such as High Court or Federal Court) or tribunal cannot question the validity of anything said by MPs in the Parliament. So if an MP decides to hurl ‘Yo Momma so fat’ insults at another MP, the court cannot, technically speaking, call into question the validity of those statements.
Immunity of members from civil or criminal proceedings for anything done or said before the House
This means MPs pretty much cannot be arrested or sued for tabling motions (aka proposing a new law or changes to a current law), saying something disagreeable, and so on.
Reading both those sections together, you can see the privilege MPs have when it comes to the discussions they may have… and it’s pretty wide.
Why is this necessary and when can it be used?
As mentioned, the Parliament is where our country’s laws are made, so the topics discussed can be wide-ranging. It makes a lot of sense if MPs are able to debate frankly on issues that would otherwise be considered sensitive to discuss outside the halls of Parliament.
[READ MORE: Where does Malaysia get its laws from?]
With regards to when and where, it is obvious that this privilege is restricted to MPs while Parliament is in session, and within the walls of the Dewan Rakyat. So basically, you (or an MP) can’t barge into the Dewan Rakyat during lunch break, scream a racist statement or a Yo’ mamma joke, and claim parliamentary privilege.
As an example, this privilege does not even extend to press conferences and comments made to the press in the Parliament lobby, as evidenced when Rafizi got arrested for when he disclosed classified documents linked to 1MDB to the press in the Parliament lobby. Things might’ve been different if he disclosed them in a parliamentary session. But since the Public Accounts Committee at that time had yet to conclude its report on 1MDB to present to Parliament, Rafizi could’ve courted contempt of the House under section 9(m) of Houses of Parliament (Privileges and Powers) Act 1952 too.
The boundaries of this privilege is why some MPs may occassionally challenge another member to repeat what they said outside Parliament, as the very same remarks could open them to a defamation suit, as when Lim Guan Eng dared Shabudin Yahaya to accuse him again of committing corruption and when Ahmad Husni Mohamad was challenged by Anwar’s then ex-lawyer to repeat his sodomy allegation against Anwar.
But there are exceptions to this #privilege…
As per Articles 63(2) and (3) of our Federal Constitution, most things can be discussed in Parliament unless they fall under Article 63(4).
Article 63(4) then refers you to Article 10(4), which basically says that in the interest of national security or public order, Parliament can pass a law prohibiting the questioning “of any matter, right, status, position, privilege, sovereignty or prerogative” on the issues of:
- Citizenship (Part III of the Constitution),
- The use of national language (Article 152),
- Reservations of quotas for Malays and natives of Sabah and Sarawak (Article 153), or
- Ruler’s sovereignty (Article 181)
To put this in an example, let’s use Bahasa Malaysia, which is our national language as per Article 152 of the Federal Constitution. Let’s say there’s a scenario where public debate to abolish BM as the national language has Malaysians divided to the point of hostility, so the Parliament passes a law that makes it an offence for anyone to call for the abolition of the Malay language in order to maintain public order. Then, an MP decides to do exactly that (i.e. call for the abolition of the Malay language in the Parliament). If he is charged for committing the offence, it is here that the privilege would not protect him.
Before you protest and say that’s unfair, this doesn’t mean that MPs cannot discuss these topics, as it will be wholly dependent on whether any laws have already been passed to prohibit the questioning of such matters. If they aren’t any, MPs are free to discuss such issues.
Article 63(4) also says that the privilege would not protect MPs if they’ve made seditious remarks or speech. As to what is considered seditious... well that’s another topic for another day. An example of this was when Nurul Izzah was arrested by the previous government for allegedly seditious remarks made when questioning the Federal Court’s decision when she read out her father’s speech in Parliament.
Another point to note is that MPs can get themselves into hot soup if they advocate for the abolition of the constitutional position of the Agong or the State Rulers under Article 63(5). Reproduced as follows:
However, as this article has mentioned, MPs can still discuss or question the conduct of the Rulers, just as long as they do not advocate for the abolition of their positions.
Why not watch your MPs in action?
Although parliamentary privilege may make MPs feel like they’re invincible, they can be liable for some things they say in Parliament. However, it is only in very specific situations where the limitations can be enforced. This gives MPs the freedom to discuss without fear of being penalised thus helping them – in theory – to create, amend and repeal laws more effectively.
So if you have any issues that you want the Parliament to table and discuss, please bring them up to your local MP.
And if you’d like to watch your MP in action, RTM has a dedicated Parliamen channel that live streams parliamentary sessions accessible here.