THE IMPERATIVES OF SOCIAL CONTRACT AND PARLIAMENTARY PRIVILEGE IN LEGISLATIVE PRACTICE

There are certain concepts that are so germane to the establishment, function and practice of legislature in any democratic system. These concepts form the orbit that the life of any legislature revolves. They are the life-wire of any legislature, as they determine its existentiality and relevance in any popular or representative political system. The concepts are social contract and parliamentary privilege. 

The concept of social contract is the establishment framework of any legislative practice. It is the epistemological foundation of any democratic system. It determines the powers and authority of legislative system. The principle of social contract or political contract posits that individuals have consented, either explicitly or tacitly, to surrender some of their freedoms and submit to the authority of the ruler (or the decision of a majority) in exchange for protection of their remaining rights. Under the social contract each individual agrees to the formation of a community under a government with responsibility for their comfortable, safe, peaceable living amongst one another, in other to secure enjoyment of their properties, and greater security against any that are not of it. 

The concept of social contract connotes government by consent, which in other words means government established by majority rule. According to John Locke, people are sovereign and through the social contract they come together to construct a limited government which can represent the community. The legislative power is placed in the collective bodies of men, be it Parliament, Congress or Assembly, with the task of providing for the rule of law: to govern by established standing laws, promulgated and known to the people and not by extemporary decree.  The legislature is convoked by social contract as an arm of government in a representative democracy. The most important question probes the role of the legislature in maintaining popular consent vis-à-vis its legislative practice and privileges exercised. 

By social contract, the legislature enjoys supreme power by virtue of its right to make laws for all the parts and every member of the society. Thus all other political powers, including the executive, are subordinate to it. Consequently, the people expect the legislature to hold the executive to account by making laws and resolutions that address, among others, the following: Poverty; Illiteracy, Infant and Maternal Mortality, Unemployment, Insecurity, Hunger, Corruption, Infrastructural decay and Social-economic inequalities.  

However, the legislature, in order to fulfil its own part of social contract obligation, needs to enjoy certain privileges and rights to be protected from harassments or any kind of inhibition while carrying out its legislative duties. This takes us to parliamentary privilege. 

Parliamentary privilege according to Wikipedia, is a legal immunity enjoyed by Members of certain legislature, in which legislators are granted protection against civil or criminal liability for actions done or statements made in the course of their legislative duties. Erskine May sees privileges of Parliament as right which are absolutely necessary for the due execution of its powers. They are enjoyed by individuals, because the House cannot perform its function without unlimited use of the service of its members and by each House for the protection of its Members and the vindication of its own authority and dignity. 

Legislative or parliamentary privilege is also described as a system in which members of a legislature are granted immunity from prosecution from civil or criminal offence. Parliamentary privileges are therefore rights and freedom enjoyed by the legislature to freely carry out its duties without hindrance from other arms of government.

Parliamentary privilege can either be claimed by Members individually or by the House collectively. The definition and scope of parliamentary privileges enjoyed by any legislature is a function and derivative of the kind of social contract agreed upon by the political system, as most parliamentary privileges derive their scope and definition from the Constitution. For instance, parliamentary privilege in Britain is known as the parliamentary immunity which allows all members of the House of Lords and House of Commons to speak freely during ordinary parliamentary proceedings without fear of legal actions on the grounds of slander, contempt of court or breaching the official Secret Act. In other words, parliamentary privileges are those privileges held by members of the legislature to speak in the House without having to worry about getting sued for slander. It is referred to as the legislative privilege in the United States of America. 

Origin of Parliamentary privilege 

The origin of parliamentary privilege can be traced to a session of the English parliament in 1397, when the House of Commons passed a bill denouncing the scandalous financial behaviour of King Richard II of England. Thomas Haxey, who was directly behind the act against the king and his court, was put on a trial and sentenced to death for treason. Haxey however received a royal pardon following the pressure applied by the House of Commons. This event prompted the House of Commons to receive the rights of the Members of parliament to discuss and debate on complete autonomy and freedom without any interference from the Crown. The Bill of Rights of 1689 further strengthened freedom of speech in the House of Commons. It expressly protected discussions and acts of members of Parliament from any interference or objection from outside parliaments.

As a matter of fact, since the great Charter of the Liberties of England otherwise known as the Magna Carta of 1215, which Lord Denning described as the greatest Constitutional document of all times and the foundation of the individual against the arbitrary authority of the despot, there have been constant battles between the monarch and the English subject . The Baron originally fought for the privilege against taxation before the Parliamentarians later fought for the privilege not to be prosecuted by the monarch for anything they say in the course of performing their legislative duties especially while on the floor of parliament.

The historical antecedent of parliamentary privileges in Nigeria is premised on Bristish colonial heritage. The Parliamentary Privilege and the Bill of Rights Act of 1958 grants Members immunity from civil and criminal proceedings on account of anything said or done in the course of the parliamentary proceedings as well as immunity from civil arrest. The Act provides that: notwithstanding anything in any written law no processes issued by any court in Nigeria in the exercise of its civil jurisdiction shall be served or executed within the chamber or precinct of a legislative house while that house is sitting or through the president, speaker or any officer of a legislative house. Neither the President nor Speaker, as the case may be of a Legislative House nor any officer of a Legislative House shall be subject to the jurisdiction of any court in respect of exercise of any power conferred on or vested in him by or under this Act or Standing Orders of the Legislative House, or by the Constitution. 

The 1959 Act however runs contrary to the provision of Section 4 (8) of the Nigerian 1999 Constitution (as amended) which states that ‘Save  as  otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of a judicial tribunal established by law’. This provision of the constitution limits rights and immunities of the Nigerian legislators. Following this, the National Assembly pushed for an amendment of the Constitution in the 7th Assembly that would guarantee exclusive immunity to the legislators, with ” A bill for an act to alter the Constitution of the federal Republic of Nigeria, 1999 by providing immunity for Members of the legislature in Session, or at Committee proceedings, to guarantee that freedom of speech, debates and proceedings in the legislative House are not impeached, or questioned in any court or place out of Parliament and for connected purposes. The Bill was however never passed. The Nigerian Constitution of 1999 did not specifically provide for privileges and immunities for the legislative Members. In other words, legislative privileges and immunities are not constitutionally guaranteed like that of the Americans, Indians, Germans and the British. 

Nevertheless, the Nigerian Constitution, though, limits the exercise of legislative powers by the National and State Assemblies by subjecting them to judicial review, yet confers on the law-making bodies power to make laws in relation to their privileges and immunity (e.g. the Legislative Assembly Power and Privileges Act cap L.12 Laws of the Federation 2004).

Scope and Definition

In today’s democracy, virtually all parliaments enjoy parliamentary privileges; however these privileges have scope and limitations, as defined by social contract. Britain for instance enjoys parliamentary supremacy which insulates laws passed by its parliament from judicial review. This is so in that since the House of Lords is the highest court in the land and an integral part of the British parliament (the upper chamber) it enjoys legal jurisdiction over laws enacted by the parliament and these laws cannot be challenged by anyone. However, parliamentary supremacy enjoyed by the British Westminster parliament does not immune its members from arrest and prosecution on criminal grounds nor does the privilege of free speech permit the legislators to utter abusive or un-parliamentary language that may imply that another member is lying. 

In the United States of America, like Nigeria’s presidential system, there is no legislative supremacy or express parliamentary immunity, due to the principle of separation of powers. The courts have the power to interpret any law that is enacted by the congress for the purpose of determining whether or not such laws are in line with the constitution 

Parliamentary privileges enjoyed by the individual members in the British Westminster system, like many parliaments worldwide, include freedom of speech; freedom of arrest in civil action; exemption to jury duty; exemption from appearing as witness; freedom from obstruction; interference; intimidation, and molestation. 

Collective privileges enjoyed by members are: power to discipline; regulation of House internal affairs; management of employees; authority to maintain the attendance and service members; rights to institute inquiries and to call witness and demand papers; right to administer oaths to witness; etcetera. 

As a matter of fact, the two key components of parliamentary privileges are parliament’s freedom of speech and parliament’s rights to control its own affairs for matters within its jurisdiction (exclusive cognizance). In practical terms, parliaments enjoy privileges and immunities from legal proceedings for actions done and things said in the context of parliamentary proceedings. The privileges, inmunities and power conferred on the House, its committees, members and officers and other participants are for the sole purpose of enabling them carry out their functions, not otherwise for the personal benefits of the individual concerned. These functions require parliamentarians to meet, legislate and debate matters of public importance and scrutinise the government without fear or favour.

In Nigeria, the inherited legislative Houses (Powers and Privileges) Act of 1958 declares and defines certain powers, privileges and immunities of the legislative House, established under the Constitution of the federal Republic of Nigeria and of the members of such legislative Houses as thus: “No civil or criminal proceedings maybe instituted against any member of legislative House in respect of words spoken in the House or Committee thereof or in respect of words written in reports to that House or to any Committee thereof or in any petition, bill, resolution, motion or question brought or introduced by him”

However, the concept of legislative immunity does not cover the following: 

a. Press release and speeches delivered outside parliament

b. Libelous publication, Corruption, Fraud, Embezzlement, Misappropriation or Misapplication of funds.

c. Solicitation for bribes by members 

d. Abuse of power

e. Use of foul, indecent or defamatory language

f. Untoward actions such as sexual molestation and or maltreatment of staff

g. Gangsterism/ in- fighting or street fighting (evidence abound of situations where members of Nigerian parliament and elsewhere engage in free for all fight within the precinct of the House)

h. Exploiting a conflict of interest or acquiring a position of commercial interest that is incompatible with one’s official role and duties for the purpose of illegal enrichment.

I. Unconstitutional procedure for enactment of legislation. 

j. Legislative immunity does not prevent a court from issuing a declaratory judgment that the procedure used by the legislature was unconstitutional.

k. Legislative immunity does not protect unlawful seizure of documents by the legislature or its committee.

l. Legislative immunity does not protect legislative acts that are taken without authority.

Implication of Defaulting on Social Contract via Legislative Rascality

The legislature, as elected representatives, though operates on majority rule, yet is subject to constitutional reservations derived from social contract. The legislative power is the fundamental power of government, but this does not mean that the holders of this power enjoy unhampered political mastery. The sovereign people may remove or alter the legislature, when it acts contrary to the trust reposed in it or fails to deliver its imperative mandates.

In many democratic countries, the law not only establishes that the Member of Parliament is responsible to the electors but also contains two provisions which guarantee the effective exercise of that responsibility. The first is that the Member must account regularly to his electors for his personal actions and the activities of the assembly of which he is a member. The second provision in law is that the Member may be recalled by his electors if he betrays their confidence or if he commits an action unworthy of his office. 

The procedure for recall varies somewhat from country to country. In Hungary, the mandate of a member can be revoked at the initiative of ten percent of his or her constituency, or a proposal for recall put forward by the National Council of the Popular Patriotic Front. A polling date is set by the Presidential Council and recall confirmed by majority vote in secret ballot with more than half the constituency voting. In the case of Members elected from the national list, the decision is taken by the National Assembly on a proposal of the party. Similar procedures exist in Bulgaria, China, Congo, Yemen, Germany, Malawi, Poland, Romania, Russia.

In Nigeria, the constitution provides for the recall of a Member if a petition signed by more than half of the persons registered to vote in that Member’s constituency is presented to the Chairman of the Independent Electoral Commission, signifying their loss of confidence in the Member. The petition is thereafter subjected to a referendum by the Independent Electoral Commission within ninety days of receipt and approved by a simple majority of the persons registered to vote in that Member’s constituency. Perhaps due to the patron-clientelist alliance between the ruled and the ruler, as well as the efficacy powerlessness of the electoral bodies, recall of a legislator is rare, if any, in Nigeria. 

Expulsion of Members from Parliament

Most democratic countries also have provisions for expelling a member from the legislature on the grounds of the following reasons—(a)failure to remedy an incompatible occupation,(b)loss of eligibility,(c) failure to attend sessions or neglect of duties,(d) misconduct and unparliamentary activity,(e) conviction of crimes, loss of rights, etc. and( f) loss of party membership or change of affiliation. Only in Brazil is parliamentary immunity extended to crimes committed outside parliamentary official duties like murder, theft e.t c. In other democratic climes, parliamentary privilege does not protect criminal acts. A standing committee sees to it that a member of the House who is in breach of the rules is either suspended or expelled from the House, depending on the severity of the breach. In Britain, the committee is called committee on Standard and Privileges. In Lagos State House of Assembly, the committee is known Ethics, Protocol and Privileges committee. It is morally incumbent on the legislature to submit its members for prosecution should such commit any of the crimes not covered by the parliamentary privileges as stated above. In Nigeria, the legislature does not have the power by the constitution to suspend or remove a member of the legislature for wrongdoing whether at local, state or federal government level except by only a competent court of law. It has been argued that suspension or removal of any member of the legislature by the parliament, except through legal process, is tantamount to denying such member’s constituency representation in that house.

In Belgium, Kenya, Mauritius, Mexico, Monaco and the Netherlands, among other few countries, there are no provisions for either recall or expulsion of a Member. In these climes, the only opportunity which the electors have to remove a Member is when he presents himself before them for re-election.

Should legislature fail repeatedly to represent the interest of the people and engage in acts of recklessness, degenerating into tyranny, it would suffer the following crises as the people withdraw their consent: 

1. Identity or Legitimacy crisis; and 

2. Crisis of nation-building. In other words, when the legislature merely engages in self-serving legislation and privileges, it will become unpopular with the people and unsuitable to build the nation.

In succinct, the principle of social contract underlines the need for the legislators to be alive to their responsibilities in delivering campaign promises to the electorate, who are now more politically conscious to demand their rights and hold politicians to account. The era of parochial political culture, characterized by godfatherism and patronage politics now seems to be unfashionable as election and reelection are now determined by performance and accountability. 

Conclusion 

The importance of social contract and legislative or parliamentary privilege has been vividly elucidated above. It can then therefore be surmised that institutionalization of legislature, with its privileges, is premised on the principle of social contract and the institution is expected to observe certain decorum while representing sovereign wish of the people. 

Reference

1. Rousseau’s 1762 Treatise on Social Agreement (Wikipedia)

2. John Uhr (1987): ‘Executive -Legislative Relations -Learning from John Locke’: Canadian in Parliamentary Review.

3. Erskine May (2004) ‘Treatise on the Law, Privileges and Usage of Parliament ‘ WR Mackay et.al (meds) London: Butterworths

4. Ibrahim Imam: An overview of the concept of Legislative Assembly’s Immunity in Nigeria (an essay). See also Watson (2008) Legislative immunity in Minesota

5. Danziger and Gillingham (2004) The Year of Magna Carta

6. Micheal Nnebe (March 15, 2013): A Question of immunity for Nigeria’s National Assembly -an article

7. Ibrahim Imam, Op Cit.

8. Section 3 of the legislative Houses Power and Privileges Act (LHPPA) Cap.L.12 Laws of the Federal Republic of Nigeria

9. OP.Cit

10. John Uhr, Op.Cit.

11.Olaosebikan E.O.(2016):  Comparative Legislatures: Contending Legislative Practice and Procedures in Advanced and Emerging Democracies. Lagos. Nigeria.

12. The 1999 Constitution of the Federal Republic of Nigeria (As Amended).