Enhancing the privileges of the lawmakers

With regard to privileges and immunities of an MP, article 78 of the Constitution of Bangladesh provides that an MP or officer of Parliament in whom powers are vested for the regulation of procedure, the conduct of business or the maintenance of order in Parliament, shall not in relation to the exercises by him of any such powers be subject to the jurisdiction of any court. An MP shall not be liable to proceedings in any court in respect of anything said, or any vote given, by him in Parliament or in any committee thereof. Subject to this article, Act of Parliament may determine the privileges of Parliament and of its committees and MPs. [article 78(2) (3) (5)].

Pursuant to article 75(1) of the Constitution, the Parliament has made its own Rules of Procedure. Regarding an MP's protection from the arrest, rule 174 of Rules of Procedure provides that no arrest of an MP shall be made within the precincts of House (Parliament) without obtaining the permission of the Speaker. Rule 175 provides that no legal process, civil or criminal, against an MP shall be served within the precincts of the House without obtaining the permission of the Speaker. However, when an MP is arrested for criminal charge or for a criminal offence or is sentenced to imprisonment by a court, or is detained under an executive order, committing judge, magistrate, or executive authority, as the case may be, shall immediately intimate such fact to the Speaker indicating the reasons for the arrest, detention or imprisonment of the MP (rule 172). Again, when an MP is arrested and after conviction is released on bail pending appeal, or is otherwise released, such fact shall be intimated to the Speaker by the authority concerned (rule 173).

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Now, let us look into the privileges of members of Parliament on matters like arrest, detention, prosecution, release, etc. in some modern countries having presidential or parliamentary system of government.

In the United States of America, all the legislative powers are vested in a Congress consisting of a Senate and House of Representatives [article 1(1)]. Section 6 of article 1 of the Constitution provides that the senators and the representatives shall in all cases, except treason, felony and breach of peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

According to article 26 of the Constitution of France, no member of the two Houses i.e. the National Assembly and the Senate of Parliament may be prosecuted, sought out, arrested, held in custody, or tried on account of opinions expressed or votes cast by him in the exercise of his functions. No member of Parliament may be prosecuted or arrested on account of any crime or misdemeanour during a parliamentary session, without the consent of the assembly of which he is a member, except when the member is arrested in flagrante delicto. Members are released from custody or their prosecution is suspended if the assembly of which they are members so demands.

A deputy of German Bundestag may not at any time be prosecuted in the courts or subjected to disciplinary action or otherwise called to account outside the Bundestag on account of a vote cast or an utterance made by him in the Bundestag or one of its committees. A deputy may be called to account or arrested for a punishable offence only by permission of the Bundestag, unless he is apprehended in the commission of the offence or during the course of the following day. Any criminal proceedings against a deputy, any detention and any other restriction of his personal freedom shall be suspended upon the request of the Bundestag.( ref. Constitution of Modern States edited with introduction, comments, and notes by Leslie Wolf-Phillips; Pall Mall Press London).

The members of the two Houses i.e. the House of Lords and the House of Commons of the British Parliament enjoy the freedom of speech; they have the right to regulate the constitution of the House of which they are members; they have the right to exclude or expel members. They have freedom from arrest when the Parliament is sitting and during a period of 40 days before and after each session of Parliament except in cases of treason, felony, breach of peace, sedition, libel and contempt of court.

The Constitution of India provides that no member of either House i.e. the Council of States or the House of People of Parliament shall be liable to any proceedings in any court in respect of anything said or any vote given by him in Parliament or any committee thereof, and no person shall be liable in respect of the publication by or under the authority of either House of Parliament of any report, paper, votes or proceedings [article 105(2)].

A member enjoys freedom from arrest in civil cases during the continuance of the session of the House and during a period of 40 days before its commencement and 40 days after its commencement. The privilege of freedom from arrest does not, however, extend to criminal offences or cases of detention under the preventive detention.

Information of arrest, detention, conviction, imprisonment and release of a member has to be immediately intimated to the House by the committing judge, magistrate or executive authority, as the case may be.

It thus appears that the members of Parliament in the aforementioned countries are subject to arrest on criminal charge or for criminal offence with permission or without permission of the concerned House. They are also liable to prosecution for criminal offences.

Secondly, the people have seen in the past how an MP of our Parliament holding the portfolio of state minister gave shelter to a wanted criminal at his official residence. The people have also seen in the past how an MP of the then ruling party created a reign of terror in his constituency resorting to criminal activities. Recently the people saw a ruling party MP leveling charge of corruption against a state minister and vice versa in the House. The question of enhancing the legal protection of lawmakers should not lose sight of those events.

Thirdly, regarding the allegation that lawmakers are being arrested under section 54 of Cr PC without warrant, it may be said that under section 54 of Cr PC any police-officer may, without an order from a magistrate and without a warrant, arrest any person under certain grounds. It is a recognised fact that arrest on suspicion under section 54 of Cr PC had been used by subsequent governments as a tool to quell political dissidents. If the government is sincere in the implementation of a 15-point directive including the direction that no police officer shall arrest a person under section 54 of the code for the purpose of detaining him under section 3 of the Special Powers Act, 1974, issued by a High Court Division Bench this will save the lawmakers and others from harassment.

Fourthly, the people are highly frustrated and disgusted to see that the main opposition party/ parties have been frequently boycotting parliament sessions and / or sittings since the reintroduction of parliamentary system of government in the early nineties. There are repeated quorum crises in the House. The MPs seem to have forgotten that they are not only handsomely paid from the taxpayers' money but also they are granted some privileges to attend to the business of the House. The Daily Star in its editorial of January 20 last says, "surely the fact that the parliament is so dysfunctional should give its members pause before voting themselves new privileges. Parliamentarians fail to form quorum, almost never sit as a full house, squabble with one another, boycott sessions, play games with rules of procedure, and essentially neither do the bidding of the people nor act in a manner consistent with their mandate as elected representatives -- and then they have the effrontery to ask for greater reward!"

To conclude, granting the lawmakers more legal protection is a highly sensitive and debatable issue particularly due to criminalisation of politics in the country over the last two decades or so. Therefore, a broad national consensus is necessary before initiating any legal process on this issue.

M. Abdul Latif Mondal is a former Secretary to the government.