Contempt of Parliament: A critical analysis
Barrister Md. Abdul Halim
THE Parliamentary Standing Committee on Public Undertakings recently sent notice to the former chief of ACC L.G. (Retd) Hasan Mashhud Chowdhury, incumbent Acting ACC Chairman M Habibur Rahman, incumbent Commissioner Abul Hasan Manzur Mannan and former ACC Secretary Delwar Hossain (now land secretary) to be present at its meeting and also asked two incumbent commissioners to send all necessary documents including the Commission's latest annual report, audit report, and reports on its activities, and on problems it faces in discharging its duties.
However, upon receiving the notice all ACC bosses replied to the committee that they would not appear before it as the notice was sent beyond the jurisdiction of the committee and that they are only accountable to the President of the Republic. Since they were absent, on 12th April, 2009 the Committee accused them for contempt of parliament. The committee asked them to come up with satisfactory explanation for not appearing before it within a week. The Chairman of the committee Mohiuddin Khan Alamgir also vaunted that 'the offenders' might end up in jail or be fined for 'contempt of the house' in case of their failure to do so. This unexpected and unheard of a type of politico-legal move by a standing committee of the parliament requires some explanation of contempt of parliament and its extent and limit.
There is no doubt that the ACC is a public undertaking and statutory commission although not a constitutional commission. As a statutory commission and as its affairs are being run on public purse, it is very much within the controlling jurisdiction of the parliamentary committee on public undertakings. However, this accountability of public bodies to the parliamentary committees are political in nature and penalty, if any, to be imposed for irregularities or corruption in those bodies will be imposed also politically by way of order for returning the public money or putting the things right which went wrong, or reimbursing any affected body, or imposing a censure or at the very extreme situation removing the concerned minister by a vote of censure. Contempt of parliament, although a politico-legal sanction in nature, has little to do with political accountability of public bodies with parliamentary committees. And if this rarely used unhappy device is used in the name of accountability, it will certainly leave a very chaotic signal for the development of political accountability of public institutions.
Although the word 'contempt of parliament' is not uncommon, the possibility of its use in the history of Bangladesh parliament is going to be the first ever one. However, the modern parliaments under written constitutions do not possess as much power to impose punishment for contempt of parliament as the United Kingdom parliament do. A clear instruction is given by the Indian Supreme Court in a 'reference case'.
Contempt of parliament and Indian Supreme Court
An interesting question of the privileges of the legislature and the powers of the High Court arose in Uttar Prodesh. One Keshava Singh was sentenced by the Speaker of the Legislative Assembly of U.P. for committing contempt of the House on March 14, 1964. The sentence was of imprisonment for seven days. On March 19 Advocate Solomon on behalf of Keshava Singh moved to the High Court for a writ of habeas corpus. The court passed an interim bail order releasing Keshava Singh pending full hearing of the petition on merits. On this, the House passed a resolution that Keshava Singh, Advocate Solomon and the two judges of the High Court issuing the bail order had committed contempt of the House and that they be brought before the House. The two judges moved a petition under Article 226 (equivalent to Article 102 of the Constitution of Bangladesh) in the High Court challenging the resolution of the House as it violated the provisions of Article 211. A full Bench of 28 Judges of the Allahabad High court ordered a stay of the implementation of the resolution. The House thereon withdrew the warrant of arrest against the two Judges, but they were asked to appear before the House to explain why the House should not proceed against them for contempt. The High Court again granted an order of stay of implementation of this resolution.
Thus a grand conflict between the Legislature and the Judiciary arose in India. In the circumstances the President of India made a reference to the Supreme Court of India under Article 143 (Re: Special Reference, AIR 1965 SC 745). The Court speaking through the Chief Justice Gajendragadkar explained that the House of Commons enjoys the privilege of committing a person for contempt because it is a superior court of record in the UK and not just a legislature. The Parliament and State Legislatures in India are not courts of record. Hence they cannot enjoy these powers which are enjoyed by the House of Commons. Moreover, in India the Constitution has provided for judicial review and has granted certain fundamental rights. The order of the Legislature to commit a person for contempt cannot be conclusive. The order can be challenged before the High Court. From the above discussion some important observations may be made:
First, parliamentary standing or permanent committees are defenders of representative democracy; they provide check and ensure accountability of public bodies, undertakings, corporations and institutions particularly of those which provide public services and utilities like gas, oil, electricity, water, sewerage etc and operate under the directives of different ministries. Parliamentary committees have strong power to send for any document and call for any person associated with these bodies expending public money. Although this is the ordinary norm of the activities of parliamentary committees, the true environment of this political accountability has never developed in this country. As a result most of the people are somewhat dismayed seeing this type of summon and threat of contempt by a parliamentary committee, given that there have been so many corruptions and misdeeds in public sectors by ministers and politicians and these committees have done nothing effective in 38 years history of this independent nation.
Second, the usual procedure of parliamentary committees is that if there is any allegation or if the committee thinks fit, it may ask the appropriate authorities to send for all necessary documents with regard to any irregularity. On examination of papers if it appears that there has been corruption or maladministration, the committee may then summon the accounts officer or the secretary or, if needed, the ex-chief of the institution or even any minister, serving or retired to give his statement on the affairs of alleged irregularity. After completion of such procedural work the committee shall submit a report to the house of the parliament. The house, on the basis of such report, will decide next course of action. However, as I indicated above, that action usually is not contempt of parliament as enforcing accountability by committee system is mounted typically against a public body and not against an individual as a form of retaliation. The spirit of ensuring responsibility of government bodies through parliamentary committees is political in nature. However, the way the committee on public undertakings has summoned the ex-chief of the ACC with all necessary papers seems based on sort of vengeance.
Third, Mohiuddin Khan Alamgir, the chairman of the Parliamentary Committee on Public Undertakings who piloted the summoning of himself as a convicted person in a graft case filed by the ACC against him. The ACC did not convict him; he was convicted by the court; ACC just filed the case against him which is its routine work. If the ACC has done anything wrong in filing cases, judicial remedies are available as provided in laws. First, for false and baseless allegation against anyone there are remedies in both the ACC Act and also in the Penal Code; second, if any of the officers of ACC, while prosecuting or filing a case, has done anything in bad faith, the ACC Act itself provides for remedies against those officers; third, if a convicted person is set free in any criminal case by the higher court, this does not mean that the very allegation filed by the ACC or prosecutor is out and out false as he may be released or set free on a technical ground which has little to do with the filing of allegation; fourth, it cannot be said that all cases filed by the ACC are politically motivated. This is why the Appellate Division itself has declared the validity of some graft cases and directed to continue trial proceeding against some important politicians. Thus, summoning directly all the bosses of the ACC and without resorting to any of these forums as mentioned above sound like a leapfrogging over judicial tiers.
The Rules of Parliament is completely silent about the term 'contempt of parliament' and its procedure. If the parliament is to use this tool, it has to invoke its inherent jurisdiction and the house may, on the basis of report of a standing committee, pass resolution of imprisonment or fine against some persons for contempt of it. However, it has to bear in mind that this parliamentary power is neither conclusive nor supreme. As the Constitution of the country is written and the balance of power is maintained by the Supreme Court under the doctrine of judicial review, the ultimate say will come from the Supreme Court as to the true nature, limit and extent of this power of parliament.
The author is a practicing advocate in the Supreme Court.