By G. A. Dwyer Astaphan
The Speaker of the House of Representatives Sir Gerald Watt QC has reportedly publicly maintained that he knows what he is doing and that he is without question right in suspending MP Asot Michael and referring him to a Committee of Privileges, that he has yet to set up. Maybe he does know what he is doing, but I think that he erred when he ejected Mr. Michael from the House.
One is not arguing with the Honourable Speaker, who is himself a Queen’s Counsel. However, one is wondering just how this situation with MP Michael is different in essence from the 1999 Dominica Court of Appeal Case of Sabaroche v Speaker of the House of Assembly of Dominica.
In that case, Justice of Appeal Albert Redhead had this to say:
“In my Judgement offensive and insulting or disrespectful language could be regarded as objectionable or unparliamentary expressions. If a Member uses unparliamentary expressions, and on being called to order (by the Speaker), he refuses to withdraw the words or expression or to explain them and has not offered an apology for the use thereof if to the satisfaction of the House, he may be proceeded against and dealt with as though he or she had committed an offence ……. that is to say his/her conduct will be regarded as gross misconduct and he/she will be asked to withdraw from the House during the remainder of the sitting.”
“To state the obvious, it is clear that all these things, that is to say, the use of the unparliamentary language, the request by the Speaker for the withdrawal of those words or to explain them, the refusal to offer an apology and finally the Speaker asking him to withdraw immediately from the House for the remainder of that sitting, must occur during the course of a sitting”.
“In light of the authorities referred to above (set out in the case), I entertain absolutely no doubt that a colonial legislature has very limited powers in relation to contempt. Its powers in that regard are only such as are reasonably necessary for the proper exercise of its functions and duties as a local legislature.” (emphasis mine)
Having read the entire case, which is linked for you (including the Speaker, should he wish to be better informed) you see that:
- Eastern Caribbean Countries Parliaments are governed by their Standing Orders;
- Their Standing Orders only relate to behaviour and expressions during proceedings in Parliament, not afterwards when people are going home;
- The Standing Orders are to be applied only to ensure the proper running of the business of the Parliament, not to punish members because the Speaker might have been involved in a robust verbal exchange with a member, each in his private persona and not as members of the Parliament sitting in, and governed by the protocols of the Parliament;
- A Speaker should not lawfully suspend a member before asking him to apologise and only if he refuses to apologise or retract his offending words can a Speaker lawfully suspend the member.
Given all of this, it just doesn’t seem like the Parliament is running right.
Respectfully, I believe that the Speaker may have over reached in this matter, and Mr. Michael could be rightly aggrieved, and his constituents disappointed that he was deprived of his Parliamentary time.
Or is it that wrong is now right today because we or somebody don’t like Asot Michael at this moment?
Sabaroche v Speaker Of The House Of Assembly and Another
[1999] 3 LRC 584
Dominica
Court of Appeal
Singh, Redhead and Matthew JJA19–20 April, 25 May 1999
- (1) Constitutional law – Parliament – Parliamentary privilege – Source and extent – House of Assembly – Whether enjoying privileges under common law – Whether privilege conferred under constitutional provisions – Constitution of the Commonwealth of Dominica 1978, ss 41, 43, 52 – Standing Orders of the House of Assembly, SO 50(10), 87.
- (2) Constitutional law – Parliament – Parliamentary privilege – House of Assembly – Member suspended for breach of standing orders – Whether lawful – Whether breach established – Whether procedure prescribed by standing orders followed – Standing Orders of the House of Assembly, SO 44(4), (6), 50(2)(a), (b).
- (3) Constitutional law – Parliament – Judicial power – Parliamentary privilege – Jurisdiction – Whether courts having jurisdiction to review acts of House of Assembly – Constitution of the Commonwealth of Dominica 1978.
On 24 February 1997 the appellant criticised the Minister for Communications, Works and Housingon the ground that the minister had behaved in an ungentlemanly manner towards members of the public. The appellant called for the House of Assembly to admonish the minister and for a code of conduct to regulate the future public behaviour of government officials. Next day, the minister complained that the appellant had breached parliamentary privilege by using insulting and disrespectful language. He tabled a motion to suspend the appellant. The Speaker heard both parties for 20 minutes and then abrogated responsibility, saying that it was for Assembly members to reach a decision on the motion. The Assembly duly voted along party lines, the appellant being suspended for the remainder of that sitting and for the following sitting. At the next sitting on 13 March the appellant tried to enter the public gallery but was ejected. He was then suspended for the subsequent sitting on 14 March but was invited, by letter from the Speaker, to attend the next sitting. The appellant filed a motion in the High Court of Dominica on 24 March alleging that his suspension was unlawful. The basis of his case was that the privilege allegedly breached was not enjoyed by the House of Assembly. He also claimed damages. That motion was dismissed, save that the High Court ruled that suspension had ended when the House adjourned on 13 March. The appellant appealed to the Court of Appeal of Dominica.
[1999] 3 LRC 584 at 585
HELD: Appeal allowed.
(1) In the absence of legislative provision, the House of Assembly not having acquired privileges under the common law, the only privileges enjoyed by the House were those which were essential to the exercise of its functions, which did not extend to include the power of punishing anyone for past misconduct as a contempt or adjudicating upon such a contempt. The authorities were clear that parliamentary privilege in the United Kingdom derived from ancient usage and prescription. In the absence of express grant, it did not extend to the legislative assemblies of Crown dependencies, which enjoyed such powers only as were reasonably necessary for the proper exercise of their functions and duties as local legislatures. After independence, s 41 of the Constitution of the Commonwealth of Dominica 1978 authorised Parliament to legislate generally and s 43 contemplated the enactment of laws prescribing the privileges and immunities of the House of Assembly and its members. However, no such legislation had been passed. Section 52 of the Constitution provided that the House could regulate its own procedure and make rules for the orderly conduct of its proceedings. Standing Order 50(10) provided for the procedure to be observed in the case of a breach of privilege and SO 87 provided that, in any matter not provided for in the Standing Orders, the usage and practice of the British House of Commons should be followed as far as applicable. However, the House, being only one of the two constituent parts of the Parliament of Dominica, had no authority to make laws prescribing the privileges of Parliament, or making provision for an illegal breach of privilege (see pp 592–595, post). Doyle v Falconer (1866) LRPC 328, Kielley v Carson (1842) 4 Moore PC 63 and Landers v Woodworth (1878) 2 SCR 158 followed.
(2) The suspension of the appellant from the sitting of the House was unlawful. He had committed no breach of privilege and the words impugned could not be regarded as objectionable or unparliamentary. Even if they were, action would have had to be taken at the time he had spoken. In accordance with SO 50(2)(a), an opportunity should have been given for him to withdraw the words and offer an apology, failing which he could have been suspended under SO 50(2)(b) for the remainder of that sitting. However, those standing orders had not been invoked. Instead the minister had proceeded against the appellant under SO 44(4) and/or 44(6), but the words used by the appellant cold not in the context be regarded as having been offensive, insulting, disrespectful or imputing improper motives to the minister within the terms of the Standing Orders (see p 595, post).
(3) As the sentinel of the Constitution, which was the supreme law, the court had jurisdiction to review the acts of every authority, including the House of Assembly, to ensure that such acts were in conformity with the Constitution and laws made thereunder (see pp 596–597, post). Dicta of Lord Diplock in Rediffusion Hong Kong v A-G of Hong Kong [1970] AC 1136 at 1137 and of Hlopha J in Delille v Speaker of the National Assembly (1998) 7 BCLR 916 at 938 applied.
[Editors’ note: Sections 41 and 43 of the Constitution of the Commonwealth of Dominica 1978 are set out at pp 594–595, post.
Section 52 of the Constitution, so far as material, provides: ‘Subject tot he provisions of this Constitution, the House may regulate its own procedure and may in particular make rules for the orderly conduct of its own proceedings …’
[1999] 3 LRC 584 at 586
Standing Orders 44(4), (6) and 50(2)(a), (b), (3), (10) are set out at pp 589–590, post.]
Cases referred to in judgment
Bradlaugh v Gossett (1884) 12 QBD 271, UK DC
Delille v Speaker of the National Assembly (1998) 7 BCLR 916, SA HC
Doyle v Falconer (1866) 4 Moore (NS) 203, 16 ER 293, Dom PC
Fotofili v Siale [1988] 2 LRC (Const) 102, Tonga PC
Jagan v Gajraj (1963) 5 WIR 333, British Guiana SC
Kielley v Carson (1842) 4 Moore PC 63, 13 ER 225, Can PC
Landers v Woodworth [1878] 2 SCR 158, Can SC
Rediffusion Hong Kong v A-G of Hong Kong [1970] AC 437, [1970] 2 WLR 1264, HK PC
Legislation referred to in judgment
Constitution of the Commonwealth of Dominica 1978, ss 41, 43, 52
Standing Orders of the House of Assembly, SOs 44(4), (6), 50(2)(a), (b), (3), (10)
Appeal
The appellant, Herbert Sabaroche, the member of Parliament for Colihaut, appealed against the decision of the High Court of Dominica dismissing his application for a declaration that he had been unlawfully suspended from Parliament. The respondents were the Speaker of the House of Assembly and the Attorney General. The facts are set out in the judgment of the court.
Anthony Astaphan for the appellant.
Anthony La Ronde (Attorney General) for the respondents.
25 May 1999. The following judgment of the court was delivered.REDHEAD JA.
In 1995 the appellant was elected as a member of the House of Assembly in Dominica for the constituency of Colihaut.
On 24 February, 1997 during his contribution to an ongoing debate in the House of Assembly, the appellant said of the honourable Minister for Communications, Works and Housing:
‘On visiting the road on Saturday 22 February I was a little taken aback that the road had not been fixed. Mr Speaker because people in Colihaut, people in Salisbury, people in MorneRachette, Coulibistrie and Dubianc they confronted the Minister for Communications and Works on the same feed road. [Hon Earl Williams had made statements to the effect that the road was repaired.] I am talking about a feeder road in Colihaut. And I wonder why parliamentarians have to behave in public like that. The people, the farmers were asking about that feeder road and you should hear. I cannot repeat it in the House. You should hear the kind of language that the Hon Minister used to those poor farmers. It was a big shame and not that—even in my presence—no one told me, I was there. I can call names of other persons who were there. You all must admonish him on that. It is a shame for government ministers to be behaving in public like
[1999] 3 LRC 584 at 587
that when people are asking them about their problems—feeder road problems. We must not tolerate that kind of behaviour from ministers of government and I do not know in what forum we must bring it up, whether it is in Parliament or some where else. There must be a code of conduct for the way the ministers and government officials behave in public and I would be happy that he would be there to hear what I am saying so that he could respond to it. [Aside: Mr Speaker, I will accept that because I recognise that a number of them behave the same way that the honourable minister behaved. I can accept that because they will mumble and grumble because that [is] the same way that they behave, and the honourable member for Mahaut in my presence used a word to his fellow companion, the junior minister for the Carib Reserve and he cannot deny it and this kind of behaviour has got to stop.] He is trying to disturb me, Mr Speaker.’
On the following day, Tuesday 25 February 1997, the honourable Minister of Communications, Works and Housing made reference in the House of Assembly to the appellant’s speech and alleged that it was a matter of privilege. He complained that the appellant had used insulting and disrespectful language in relation to him and the entire incident was untrue. He then expressed an intention to move a motion against the appellant in accordance with Standing Order 44[4] and asked that the appellant apologise. A debate among the members ensued.
On Wednesday 26 February 1997 the minister presented a motion to the House in the following terms:
‘The member for Colihaut used offensive, insulting and disrespectful language and indulged in personalities in reference to another member of the House and the honourable Minister for Communication Works and Housing by implication members of the government side of the House.’
The motion read:
‘BE IT RESOLVED that the House comes to a decision on the alleged fault and that if so proved the member be suspended for the remainder of this sitting and the next sitting of the Honourable House.’
After the motion was read the speaker permitted the minister and the appellant to speak for twenty minutes each. There was no further debate. The Speaker then said:
‘I have heard what the member has to say. I would not like to compare myself to Pilate but the point is the matter is out of my hands. I wish to wash my hands.’
The Speaker then went on to say that as judge in that matter he ought not to take sides and besides the responsibility for the decision-making rests surely in the hands of the members of the House according to him. He said that he had absolutely no business in this at all. He is just there to preside and leave it to the members of the House to make their own decisions.
[1999] 3 LRC 584 at 588
Finally the speaker said:
‘The fact is that I did not stop the member [I think he quoted s 44(4)], because I want all members to understand this, just because … mean I do not know. A member makes a statement about an incident which occurred somewhere. I am in no position to say that statement is correct or not. So, the statement was not abusive, it was not offensive. As to whether it was disrespectful, I do not know because of the fact that I was not present and I was in no position to determine whether the statement was accurate or not. So that is why the rules provide when making statements members should satisfy themselves that those statements are accurate. So I have no alternative but to put the question to the House for the House to make its own decision on the matter.’
The motion was then passed. The voting was along party lines. The appellant was suspended for the remainder of the sitting of the House and the next sitting.
The next sitting of the House was on 13 March. While standing outside of the House of Assemblybuilding the appellant was informed by a senior police officer that it was his understanding that the appellant was allowed to go to the gallery and that he was prepared to escort him there. The appellant agreed, but on arriving on the steps of the gallery, Inspector Sylvester told him he had no right to be on the gallery. The inspector, however, went to clarify the matter with the Speaker. On the Inspector’s return he told the appellant that the Speaker had directed that he was not allowed to be in the building and that he should be escorted outside. Whereupon the appellant was removed from the building without his consent and against his will.
On 14 March 1997 during a sitting of the House the Speaker‘s attention was drawn to the definition of ‘sitting’ as contained in Order 2[1] of the Standing Orders of the House. At approximately 8.00 pm that evening the House was adjourned sine die. Just prior to the adjournment the speaker made the following announcement: ‘This sitting has/is been completed and therefore Mr Sabaroche is to remain suspended for the next sitting as well.’
On 17 March 1997 the appellant received a letter from the speaker inviting him to attend the next sitting of the House of Assembly.
On 24 March 1997 a motion was filed in High Court of Dominica seeking a number of declarations alleging that his suspension from the House was illegal. The appellant also claimed damages for his alleged unlawful suspension from the House.
The appellant’s case was substantially dismissed except that the learned trial judge held that the suspension of the appellant ended when the House adjourned on 13 March 1997.
In his judgment the learned judge wrote:
‘There should be a declaration that the suspension of the applicant ended when the Houseadjourned on 13 March 1997. Otherwise the proceedings should be dismissed. I will hear the parties on costs on a date to be arranged.’
The appellant now appeals to this court.
[1999] 3 LRC 584 at 589
One ground of appeal with 12 sub-heads was filed on behalf of the appellant.
‘[a] Challenges the decision on the ground that the decision is erroneous in point of law because the learned trial judge failed to consider and properly decide the central issues arising in this case, namely, what, if any, are the privileges of the House of Assembly in the absence of specific legislation enacting or prescribing, inter alia, the privileges of the Parliament inclusive of the House of the Assembly to punish or suspend for breach of a privilege.
[b] The learned trial judge erred in failing to hold that the appellant was suspended for a breach of “privilege” which did not and does not exist in law, and/or in failing to hold that the words spoken by the appellant did not constitute or amount to a breach of the “privileges” of the Parliament of the Commonwealth of Dominica.’
In my view these two grounds are the central theme running through the other grounds. So I shall not set them out in full.
MrAstaphan, learned counsel, for the appellant in his written submissions posed these questions. The questions which arise in this appeal are: did the alleged privilege of which the appellant was accused and/or suspended and/or denied re-entry to the House of Assembly exist in law and, does the court have jurisdiction to inquire into the existence and extent of the alleged privilege?
I agree entirely with MrAstaphan that these are the issues which fall for determination in this appeal. I deal with the first part of the question first. In order to do so it is necessary in my opinion that a careful examination of the complaint against the appellant must be addressed.
The Minister for Communications and Works (the minister) complained the day after the appellant had spoken in the House of Assembly that the appellant used insulting and disrespectful language in relation to him and that the entire incident was untrue. The minister then indicated his intention to move a motion against the appellant in accordance with Standing Order 44(4) and asked that the appellant apologise.
I now refer to the relevant standing orders:
Standing Order 44(4) provides:
‘It shall be out of order to use offensive and insulting or disrespectful language about members or against the House of Assembly.’
Standing Order 44(6) provides:
‘No member shall impute improper motives to any member of the House or indulge in personalities except on a substantive motion moved for the purpose.’
Standing Order 49(1) provides:
‘The Speaker in the House and the Chairman in Committee respectively and their decision upon any point of order shall not be open to appeal and shall not be reviewed by the house except on a substantive motion made after notice.’
[1999] 3 LRC 584 at 590
Standing Order 50(1) provides:
‘The Speaker or the Chairman, after having called the attention of the House or the Committee to the conduct of the member who persists in irrelevance or tedious repetition either of his own argument or of the arguments used by other members in debate, may direct him to discontinue his speech and to resume his seat.’
Standing Order 50(2)(a) provides:
‘Any member who has used objectionable or unparliamentary expressions and on being called to order has refused to withdraw the words or expressions or to explain them and has not offered an apology for the use thereof to the satisfaction of the House may be proceeded against and dealt with as though he had committed an offence under 2(b).’
Standing Order 50(2)(b) provides:
‘The Speaker or the Chairman shall order any member whose conduct is grossly disorderly to withdraw immediately during the remainder of the sitting. If a direction to withdraw under this paragraph is not complied with at once or if, on any occasion, the speaker or the Chairman considers that his powers under the previous provisions of this paragraph are inadequate, the Speaker, or Chairman may name such member in pursuance of the procedure prescribed in paragraph 3.’
Standing Order 50(3) provides:
‘If a member shows disregard for the authority of the chair, the business of the House, or otherwise, the Speaker and the Chairman, shall direct the attention of the members to the incident mentioning by name the member concerned. Whenever a member has been so named by the Speaker or by the Chairman then—(a) if the offence has been committed in the House, the Speaker shall call upon a minister to move “that Mr — be suspended from service of the House”. The Speaker shall put the question forthwith on the motion forthwith, no seconder being required and no amendment, adjournment on the debate being allowed.’
Standing Order 50(10) provides:
‘In the case of a breach of privilege the following procedure shall be observed:
(a) the member must first make a complaint that there has been a breach of privilege and then declare that he intends to propose a motion to that effect
(b) the motion must set out the accusation in explicit but moderate terms, together with the facts of the case. It must propose that the House comes to a decision on the alleged fault after considering a report from a select committee following on inquiry by the committee as of right. The motion is not susceptible to amendment or divisions.’
[1999] 3 LRC 584 at 591
Standing Order 50(10)(1)(c) provides:
‘The mover and the member whose conduct is impugned may speak for twenty minutes each when they have concluded, the matter shall either be considered by the House or a select Committee appointed to investigate the matter. In addition to its finding the Committee may include recommendations in its report.’
From the record it is obvious that the minister proceeded or rather brought his complaint in accordance with Standing Orders 44(4) and/or 44(6).
I make two observations, having regard to what the appellant said in the House of Assembly on 24 February 1997 about the minister. What could be regarded as offensive, insulting or disrespectful? (SO 44(4)). Or was there anything in what the appellant said that could be regarded as imputing improper motives to the minister or indulging the personalities? (SO 44(6)). I think not.
The words used by the appellant in my opinion cannot in the context be regarded as having being offensive, insulting, disrespectful or imputing improper motives to the minister. The appellant was obviously making a complaint against the minister in the House of Assembly—the proper forum in my view—of what he perceived to be ungentlemanly conduct towards members of the public
From the record it does not even seem to me that the complaint by the appellant was investigated, as in my view there ought to be an investigation, when he said that there were others present and he proceeded to name names of those whom he said were present. Yet the House proceeded along party lines to find him guilty of a breach of privilege.
It is interesting to note that if a member uses offensive, and insulting or disrespectful language or imputes improper motives to any member neither SO 44(4) nor SO 44(6) stipulates how that member should be dealt with. There is no doubt that he can be dealt with under SO 50(2)(a) and 50(2)(b).
In my judgment offensive and insulting or disrespectful language could be regarded as objectionable or unparliamentary expressions. If a member uses unparliamentary expressions ‘and on being called to order [by the Speaker] refuses to withdraw the words or expressions or to explain them and has not offered an apology for the use thereof to the satisfaction of the House he may be proceeded against and be dealt with as though he had committed an offence under paragraph 2(b)’, that is to say, his conduct will be regarded as gross misconduct and he will be asked to withdraw immediately from the House during the remainder of the sitting.
To state the obvious, it is clear that all these things, that is to say, the use of the unparliamentary language, the request by the speaker for the withdrawal of those words or to explain them, the refusal to offer an apology and finally the Speaker asking him to withdraw immediately from the House for the remainder of that sitting, must occur during the course of a sitting.
But of course this was not the procedure which was adopted in this case. The appellant was proceeded against under SO 50(10) although, as I have said above, the complaint made against him comes within the purview of SO 44(4) and 44(6).
[1999] 3 LRC 584 at 592
Standing Order 50(10) begins with the words ‘In the case of a breach of privilege’. This presupposes that a breach of privilege has occurred. The appellant was undoubtedly punished for a breach of privilege. What privilege did the appellant breach? This in my view brings me to an analysis of the privileges as they pertain to the House of Assembly of the Commonwealth of Dominica.
In Doyle v Falconer 1866 LR (PC) 328 it was laid down in clear and unambiguous terms that:
‘The legislative Assembly of Dominica does not possess the power of punishing a contempt though committed in its presence and by one of its members; such authority does not belong to a Colonial House of Assembly by analogy to the lex et consuetudo Parliamenti; which is inherent in the two Houses of Parliament in the United Kingdom or to a court of justice, which is a court of record, a Colonial House of Assembly having no judicial functions.’
In that case, Falconer, a member of the lower House of Assembly during an address in the Housesaid to the speaker Doyle: ‘You are a disgrace to this House.’ He was called upon by Doyle to apologise. He refused to do so and repeated the same words to the speaker. The House of Assembly having called upon Falconer to apologise he again refused to do so. He was then held in contempt and having, whilst so in contempt, interrupted and obstructed the business before the House. It was thereupon resolved that Falconer, for his disorderly conduct and contempt of the House, be taken in to the custody of the Sergeant-At-Arms. The speaker in pursuance of a resolution passed by House, issued a warrant ‘in pursuance of customs and practice by the House‘ committing Falconer to the common gaol during the pleasure of the House. Sir James Colville said (1866 LR (PC) 328 at 339):
‘The privilege of the House of Commons, that of punishing for contempt being one, belong to it by virtue of the lex et consuetudo Parliamenti, which is a law peculiar to and inherent in two Houses of Parliament of the United Kingdom. It cannot, therefore be inferred from certain powers by the House of Commons by virtue of that ancient usage and prescription, that the like powers belong to the Legislative Assemblies of comparatively recent creation in the dependencies of the Crown.’
The power of arrest for contempt by the House of Assembly of the Island of Newfoundland was called for determination in Kielley v Carson (1842) 4 Moore PC 63, which decided that the House of Assembly of the Island of Newfoundland does not possess, as a legal incident, the power of arrest, with a view to adjudication on a contempt committed out of the House but possesses any such powers as are reasonably necessary for the proper exercise of its functions and duties as a local legislature. Parke B said ((1842) 4 Moore PC 63 at 88):
‘The whole question then is reduced to this—whether by law, the power of committing for a contempt, not in the presence of the Assembly, is incident to every local Legislature. The statute law on this subject being
[1999] 3 LRC 584 at 593
silent, the Common Law is to govern it; and what is the Common Law depends upon principle and precedent. Their Lordships see no reason to think, that in the principle of the Common Law, any other powers are given them, than such as are necessary to the existence of such a body, and the proper exercise of the functions which it is intended to execute. These powers are granted by the very act of its establishment, an act which on both sides, it is admitted, it is competent for the Crown to perform. This is the principle which governs all legal incidents. “Quando Lex aliquidConcedit, ConcedereViditur et iliud, sine quo res Ipsaesse non potest.” In conformity to this principle we feel no doubt that such an Assembly has the right of protecting itself from all impediment to the due course of its proceedings. To the full extent of every measure which it may be really necessary to adopt, to secure the free exercise of their Legislative functions, they are justified in acting by the principle of the Common Law. But the power of punishing any one for past misconduct as a contempt of its authority, and adjudicating upon the fact of such contempt, and the measure of punishment as a judicial body, irresponsible to the party accused, whatever the real facts may be, is of a very different character, and by no means essentially necessary for the exercise of its functions by a local Legislature whether representative or not.’
In Landers v Woodworth [1878] 2 SCR 158 the respondent, a member of the House of Assemblyof the Province of Nova Scotia, accused the Provincial Secretary of having falsified a record, on investigation by a Committee of the House it was discovered that the accusation was unfounded. The House resolved that the respondent in making the charge without sufficient evidence was guilty of a breach of privilege. The respondent was then ordered to make an apology. He refused to do so. Another resolution found him guilty of contempt and ordered him to withdraw from the House until such apology be made. He refused, another resolution which was passed ordering his removal from the House by the sergeant-at-arms who with his assistant enforced the order. The respondent brought an action of trespass against the speaker and other members of the House and obtained $500 damages. On appeal it was held affirming the judgment of the Supreme Court of Nova Scotia that the Legislative Assembly of the Province of Nova Scotia has, in the absence of express grant, no power to remove one of its members for contempt unless he is actually obstructing the business of the house; and the respondent having been removed from his seat, not because he was obstructing the business of the House, but because he would not repeat the apology required, the appellants were liable. Ritchie J said ([1878] 2 SCR 158 at 201):
‘I think a series of authorities, binding on this court, clearly establish that the House of Assembly of Nova Scotia has no power to punish for any offence not an immediate obstruction to the due course of its proceedings and the proper exercise of its functions, such power not being an essential attribute, nor essentially necessary, for the exercise of its functions by a
[1999] 3 LRC 584 at 594
local legislature, and not belonging to it as a necessary or legal local legislatures have not the privilege which belong to the House of Commons of Great Britain, by the lex et consuetudo Parliamenti!’
In light of the authorities referred to above, I entertain absolutely no doubt that a colonial legislature has very limited powers in relation to contempt. Its powers in that regard are only such as are reasonably necessary for the proper exercise of its functions and duties as a local legislature.
What is the position of the House of Assembly in an independent Commonwealth of Dominica? The learned Attorney General, Mr La Ronde, argued that the privileges of the House of Commons apply to Dominica by virtue of SO 87 which provides as follows:
‘(1) In any matter not herein provided for resort shall be had to the usage and practice of the House of Commons of the Parliament of Great Britain and Northern Ireland which shall be followed as far as the same may be applicable to the House and not inconsistent with Standing Order nor with the practice of this House.’
The learned Attorney General contended that both the decisions of Bradlaugh v Gossett (1884) 12 QBD 271 and Jagan v Gajraj (1963) 5 WIR 333 show clearly that the House can discipline its member for ‘breach of privilege such as disorderly conduct’.
The learned Attorney General in support of his contention that the House of Assembly of the Commonwealth of Dominica possesses these powers relies on Fotofili v Siale [1988] 2 LRC (Const) 102 at 106:
‘Apart from the question of supremacy there are other privileges and immunities which must be available to a legislative body, which are incidental to its existence and status, or necessary for the reasonable and proper exercise of the functions vested in it.’
In my judgment standing orders must be differentiated from privileges. Section 52 of the Constitution of Dominica says, in part, that the House may regulate its own procedure and may in particular make rules for the orderly conduct of its own proceedings. This refers to standing orders only.
I agree with the submission of MrAstaphan, learned counsel for the appellant, that the House of Assembly—being only one of the two constituent parts of the Parliament of the Commonwealth of Dominica—has no authority to make any laws prescribing the privileges of the Parliament of the Commonwealth of Dominica or any laws providing for an alleged breach of Parliamentary privilege. The authority for making any laws prescribing the privileges of Parliament resides in the Parliament of Dominica under and by virtue of s 41 of the Constitution which provides, inter alia, that ‘Parliament may make laws for the peace and good government of Dominica’.
Section 43 of the Dominica Constitution contemplates the making of such laws for prescribing the privileges of the House of Assembly when it provides, inter alia:
[1999] 3 LRC 584 at 595
‘Without prejudice to any provision made by Parliament relating to the powers, privileges and immunities of the House and its Committees or privileges or immunities of the members and officers of the House and of other persons concerned in the business of the House or its Committees …’
Mr La Ronde also submitted that the doctrine of necessity makes it incumbent that there are privileges of the House and breaches thereof may be punished. I reject this submission.
The Parliament of the Commonwealth of Dominica not having passed any legislation as provided for under s 41 of the Constitution and the House not having acquired privileges under common law by virtue of ancient usage and prescription, the only privileges therefore which the House of Assembly of the Commonwealth of Dominica possesses are those which are essentially necessary for the exercise of its functions.
The conduct of the appellant, therefore could never be regarded as a breach of privilege. Even if by the stretch of the imagination to its limit one were to categorise what the appellant said in the House under head of ‘misconduct’, the action of the members of the House was in effect to punish the appellant for a past misconduct as a contempt and this by no means was essentially necessary for the exercise of its functions.
If the appellant was obstructing the proceedings of the House or if, at the time he was speaking what he was saying was considered to be objectionable or unparliamentary and the Speaker had asked him to withdraw the words and offer an apology and he had refused to apologise then the House could have proceeded against him for gross misorderly conduct but that did not happen in this case.
The appellant made a speech on 24 February. The minister on the following day went in the Houseof Assembly said that he wanted to move a motion against the appellant. The motion was read by the minister. The minister presented the motion. The minister voted on the motion. The minister is a member of the majority party which forms the government. The record shows that the minister presented the petition. He voted on the motion to suspend the appellant. I agree with learned counsel’s submission that the minister was judge in his own cause. Moreover, the speaker like Pontius Pilate, washed his hands of the whole affair. He could not find any fault in the appellant’s speech to condemn him in contempt or any breach of the standing orders so he left it up to the members of the House, in my opinion, as in Landers v Woodworth [1878] 2 SCR 158 at 204 as Ritchie J quoting Lord Denman said ‘with one voice accused condemned and executed’ the appellant.
In my judgment the appellant had committed no breach of privilege. The words spoken by him could not be regarded as objectionable or unparliamentary. Even if they were, action would have had to be taken at the time he used those words. An opportunity had to be given to him to withdraw those words and offer an apology and if he failed to do those things then he could be suspended under SO 50(2)(b) for remainder of the sitting. In the premises therefore the appellant’s suspension from the sitting of the House was unlawful.
[1999] 3 LRC 584 at 596
I now address the question of whether the court has jurisdiction to inquire into affairs of the Houseof Assembly. MrAstaphan, learned counsel for the appellant, in his skeleton argument said that the courts have a responsibility and duty to ensure that every authority, inclusive of the House of Assembly, act in accordance with legislation, statutory rules and laws. He submitted that if the House of Assembly purports to suspend a member for an alleged breach of privilege which does not exist in law but purports to do so in complete disregard of the very standing orders made by the House, the court is obliged to act and afford the aggrieved member the appropriate relief. With this I am in full agreement. I shall go further and say the Constitution of the Commonwealth of Dominica is the supreme law of the land. The House of Assembly gets its authority from the Constitution; the court being the sentinel of the Constitution must act and has a duty to act when any authority acts in non conformity with any rules or laws which it derives under the very Constitution.
In Rediffusion Hong Kong v A-G of Hong Kong [1970] AC 1136 at 1155 Lord Diplock said:
‘Although the argument that a court of justice had no jurisdiction “to inquire as to what is done within the walls of parliament” had been advanced at the hearing in the Supreme Court it received no mention in the judgment. Both that court and the Judicial Committee treated it as automatic that the court had jurisdiction to inquire into and grant relief for unlawful conduct by members of a legislative assembly in the course of legislative proceedings in the chambers.’
In Delille v Speaker of the National Assembly 1998 7 BCLR 916 the High Court in Cape Province, South Africa was considering s 57(1)(a) of the Constitution which permits the Assembly to determine and control its internal arrangements proceedings and procedures. This section is similar to s 52 of the Dominica Constitution which provides, inter alia:
‘… the House may regulate its own procedure and may in particular make rules for orderly conduct of its own proceedings.’
Hlopha J said (at 938):
‘It does not, however, follow that the Assembly can do so in a manner inconsistent with the Constitution. The exercise of the power conferred on the Assembly by s 57(1)(a) remains subject to the Constitution and subject to constitutional review by the courts.’
With respect I accept this as a correct principle of the law on this subject.
MrAstaphan argued that the appellant has a legal right to sit in the House of Assembly unless he is suspended in accordance with the rules or in compliance with standing orders. I accept this argument.
Having decided that the appellant’s suspension was illegal, the appellant is therefore entitled to the declarations and orders which he seeks.
I hereby declare that the appellant’s suspension from the House of Assembly of the Commonwealth of Dominica was unlawful.
[1999] 3 LRC 584 at 597
The appellant had also asked for damages in the High Court. MrAstaphan told this court that the appellant was paid his salary. No evidence was led as to any loss which the appellant suffered as a result of his unlawful expulsion from the House. I shall therefore award nominal damages in the sum of $500 for his unlawful expulsion.
Costs to the appellant to be taxed, if not agreed.
