Op-Ed: Withering of free expression: The case of Harry Gill


Below is an opinion piece by former Attorney General, Attorney-at-law and Member of Parliament Mohabir Anil Nandlall:

The learned authors of Erskine May, Parliamentary Practice, 12th Edition posit thus:

“The chief characteristics attaching to the office of Speaker in the House of Commons are authority and impartiality…. Confidence in the impartiality of the Speaker is an indispensable condition of the successful working of procedure, and many conventions exist which have as their object not only to ensure the impartiality of the Speaker but also to ensure that his impartiality is generally recognised.”

Last Monday, a letter was published in the newspapers written by Member of Parliament, Harry Gill. In this letter, Mr. Gill cited a number of indisputable factual instances, which arose during proceedings in the National Assembly over the last 3 years, upon which the Speaker of the National Assembly was required to rule and did rule.

Mr. Gill juxtaposed cases involving Government members and the Speaker’s ruling thereon against instances involving Opposition members, on identical if not similar issues, and the Speaker’s rulings thereon. He then highlighted the differences in the Speaker’s rulings thereby demonstrating that on the same issues, the Speaker rules in one way in respect of the Government and another way in respect of the Opposition. At the end of this process, Mr. Gill syllogistically concluded that the Speaker’s rulings on those matters were neither impartial nor fair. In fact, that the Speaker was biased in favour of the Government and against the Opposition.

There can be no doubt that the business of the National Assembly would constitute matters of public interest. From time immemorial, the law has always guaranteed fair comment on matters of public interest and the truth (justification) as indispensable prerequisites of freedom of expression.

Inherent in freedom of expression is the right to criticise; even harshly.

Mr. Gill’s letter recites verifiable factual occurrences whose veracity can easily be established by reference to the Hansard and video images which can be accessed from the Parliamentary website. I would be bold and possibly expose myself to risk, to assert that any dispassionate analysis of the evidence to which I have adverted would yield the same conclusion as Mr. Gill.

So if what Mr. Gill wrote is substantially the truth and fair comment on matters of public interest, on what basis can it attract sanctions of any sort? Critical it may be but criticisms have never been unlawful. Also, the law says that in the interest of freedom of expression, fair comment and the truth are absolute defences. On many occasions, the Judiciary itself has been similarly circumstanced. Great Judges have always risen to the occasion and in so doing championed freedom of expression over their narrow partisan interests.

For example, in R v Commissioner of Police [1968] 2 QBD page 150, Mr. Quintin Hogg, in a newspaper article described decisions of the High Court and the Court of Appeal of England, as “unworkable, unrealistic, contradictory and erroneous” and among other things he reminded Judges: “silence is always an option”. He was charged with contempt. In dismissing the case, Lord Denning expressed the legal position thus:

“This is the first case, so far as I know, where this court has been called on to consider an allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise: more particularly as we ourselves have an interest in the matter.

Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to supress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself.

It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication.

Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.

So it comes to this: Mr. Quintin Hogg has criticised the court, but in so doing he is exercising his undoubted right. The article contains an error, no doubt, but errors do not make it contempt of court. We must uphold his right to the uttermost.”

These principles would obviously apply to the Parliament mutatis mutandis. Therefore, it is the undoubted right of every Member of Parliament, nay, every man in a free society to criticise the Speaker and even to allege bias, once it is supported by veritable evidence. Whether Mr. Gill intended to bring the House into disrepute is answered by the last sentence of his letter. It reads:

“It is not my intention to bring the Speaker or the National Assembly into disrepute. It is merely my hope that the dignity of the House prevails.”

In the circumstances, I respectfully submit that the motion moved by Prime Minister Moses Nagamootoo, was as frivolous as it was vexatious and wholly without basis. It ineluctably follows that the decision of the Speaker, to send the matter to the Privileges Committee for its consideration, is equally flawed: ex nihilo nihil fit (out of nothing cometh nothing).

There are still three issues that have to be addressed. Firstly, is the offence for which Mr. Gill is impugned, a breach of privilege or contempt of Parliament? Though loosely used interchangeably, technically, these are disparate concepts to which different legal principles apply. That the matter was committed to the Privileges Committee may suggest that it is one of breach of privilege. This necessarily raises the second issue, does the House’s jurisdiction to sanction for breach of privilege or contempt extend to matters outside of the precincts of the House? The text, Contempt of Parliament, by Kieron Wood, 2012, at page 13, offer some guidance:

“Criticism of [and by] Parliamentarians outside Parliament is not considered contempt in most common law jurisdictions. The Australian Parliamentary Privileges Act 1987 provides that words or acts which are “defamatory or critical of the Parliament, a House, a committee or a Member” shall not be considered a contempt unless done in the presence of a House or a Committee.”

Additionally, contempt of parliament and parliamentary privilege apply only to “proceedings” in Parliament. In Guyana, there is no statutory definition of proceedings in Parliament. Erskine May describes proceedings in Parliament as “some formal action, usually a decision, taken by the House in its collective capacity.” Certainly, Mr. Gill’s letter in the press would not be caught in this classification. Consequently, it is highly unlikely that Parliament can properly exercise jurisdiction in this matter.

In Stockdale v Hansard [1839] QB 112, the Court (UK) accepted that while Parliament had exclusive jurisdiction over its own internal proceedings, it was for the Court to decide whether or not a claim of privilege fell into that category. Therefore, the High Court will certainly have jurisdiction in determining whether the letter under review is a matter of parliamentary privilege.

The final issue is whether it was lawful for the Speaker to preside over the Privilege Motion, having regard to the fact that his conduct was the subject of the alleged violation. It is common ground that a principle of natural justice is nemo judex in causa sua (a man cannot be a Judge in his own case).

In my view, it would be impossible for a Judge to lawfully find that natural justice does not apply to the foremost law making institution of this Land, governed by a Constitution, which as the supreme law, guarantees freedom of expression as a fundamental right when that institution seeks to impose sanctions against one who chooses to exercise that fundamental right.



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