By Nemo Yalo, Former Judge of Judiciary
INTRODUCTION
I have not written on public interest matters for a while. On Friday afternoon 1 June 2018, a fellow citizen greeted and asked me to write, again. So this time, I did
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| National Parliament of PNG |
I have not met or communicated with Mr Kramer in any manner since the middle of last month. So I am not writing for him.
I wish to write in parts because the article is lengthy. In Part I, I set out the background facts, define ‘Parliamentary Privilege’ and outline what actions may amount to breach of privilege or contempt of the Parliament.
In Part II, I discuss the provisions of the Parliamentary Powers and Privileges Act and the Defamation Act, and discuss what actions may be defamation but is justified or excused under the law. In Part III, I discuss what shutting down Facebook means, digital future (APEC 2018 theme), the collective public voice never heard before and the proverbial naked Emperor. You wouldn’t want to miss, Part III.
BACKGROUND FACTS
On Tuesday 29 May 2018 the Post Courier published a report titled “Shutting down Facebook is a reality”. It reported the Minister for Communications and Information Technology, Mr Sam Basil’s response to its reporter’s question on the Government’s intention to regulate Facebook: ‘it will take up to one month or so for shutdown of Facebook’, said Basil. The reason for the shutdown is to research and analyse Facebook to eliminate fake accounts to prevent fake news and posting of material that are slanderous and pornographic. Mr Basil had said that the National Research Institute will be engaged for this purpose. However, the institute has denied any request by the Government. The news went viral globally.
On Wednesday 30 May 2018 Sam Basil denied in Parliament the report by Post Courier. On the same day Mr Kramer posted on Facebook an article titled “Did dumb just get dumber”, reacting to Mr Basil’s denial of the report. On Thursday 31 May the Post Courier reported that it stood by its report and its reporter’s taking of the news in Mr Basil’s electorate to be true and it is not “fake news”. The Paper unequivocally stated that it stands to protect the rights to freedom of expression and publication. Interestingly, Basil has chosen not take Post Courier to task under the relevant legislation his Ministry administers, for reporting the apparent ‘fake news’.
On Friday 1 June 2018 the Speaker of the National Parliament Hon Job Pomat MP referred Bryan Kramer to the Parliamentary Privileges Committee following a motion moved by Mr Kobby Bomareo, Member for Tewae-Siassi Open Electorate regarding the Facebook post of 30 May 2018. Following the Speaker’s move, the Opposition walked out of the Chamber. There was high drama in Parliament never seen in recent times.
WHAT IS PARLIAMENTARY PRIVILEGE?
Parliamentary Privilege is a legal immunity enjoyed by members of Parliament in which each legislator is granted protection against criminal or civil liability for actions done or statements made in Parliament in the course of the performance of their Parliamentary duties. It is common in countries whose Constitutions are based on the Westminster System.
In Papua New Guinea (PNG), Parliamentary Privileges are enumerated under Section 115 of the Constitution. Section 115 provides that there shall be freedom of speech, debate and proceeding in the Parliament, and the exercise of those freedoms shall not be questioned in any court or in any proceedings whatever (otherwise than in proceedings in the Parliament or before a committee of the Parliament). No member of the Parliament is subject to the jurisdiction of any court in respect of the exercise of his powers or the performance of his functions, duties or responsibilities as such. The basic rule of thumb is that anything said or done in the House stays within its walls. However, this particular privilege or immunity does not affect the operation of the leadership code, example fist-fight in the Chamber is not protected by privilege. Section 115 and the historical aspects of Parliamentary Privilege was discussed in some depth by the Supreme Court in the seminal judgment in a Constitutional Reference relating to the Integrity Law handed down on 7 July 2010 .
BREACH OF PARLIAMENTARY PRIVILEGE
A breach of Parliamentary privilege may occur when a Member of Parliament is obstructed or hindered from exercising his freedom to debate, introduce a bill or air grievances in Parliament or from conducting his lawful duties in a Parliamentary Committee. A breach of Parliamentary privilege occurs if a Member of Parliament is arrested within the Parliament precincts when Parliament is in session or when he is arrested outside of Parliament at any time for what he may have said or done in the Chamber of Parliament or at a Committee of Parliament in the course of performing his parliamentary duties.
A breach of privilege also occurs when there is an attack or when there is an act of disregard on the rights, powers and immunities of the House and its members, by anyone including an MP, or any other person or by a body.
I gather from the media reports that Mr Kramer’s referral has nothing to do with breach of the privileges listed under Section 115 of the Constitution.
CONTEMPT OF THE HOUSE
There are other acts against the dignity and authority of the Legislature which may not fall within the breach of privilege category. But the Parliament may punish the offender for contempt of the House. Instances of these may include obstruction of the performance of the functions of Parliament or its members (not inside the Chamber) or officers or the disobedience of the orders or resolutions of Parliament of its Committees or for libel (i.e. publishing false or damaging statements against the Parliament, its members or its officers). Disturbance or interruption of the proceedings of Parliament by anyone in the public gallery may amount to contempt of the House. MPs whilst in the Chamber behaving like school boys, we observe occasionally on the streets of Port Moresby are committing contempt of the House and should be referred to the privilege Committee. The rationale to punish for contempt of the Parliament is to protect itself from disrespect or from acts which impede it from the performance of its functions.
In other countries contempt, as opposed to privilege, is not specified or not categorised or enumerated. By comparison, whilst Section 115 of the Constitution enumerates privileges, contempt of Parliament is like a wide net cast out in the open ocean capable of netting anything. In the same way, it is not possible to categorise levels of punishments for contempt. The answers to the questions ‘whether a conduct is determined as contempt or not’ and if so, ‘what punishment to impose’ lie at the mercy of the whims of the privilege committee.
In PNG, however, the Parliamentary Powers and Privileges Act provides what amounts to contempt of the House and the range of penalties to be imposed.
In Part II, which is coming tomorrow, I will discuss the Parliamentary Powers and Privileges Act and the Defamation Act, what amounts to Defamation and what may be justified or fair comment notwithstanding that an act or statement or publication may be defamatory and therefore tantamount to contempt of the Parliament.
