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Autor     Marc Van der Hulst
Titel    The Parliamentary Mandate, A Global Comparative Study
Ort    Geneva
Verlag    Inter-Parliamentary Union
Jahr    2000
ISBN    92-9142-056-5
URL    http://www.ipu.org/PDF/publications/mandate_e.pdf

Literaturverz.   

ja
Fußnoten    ja
Fragmente    33


Fragmente der Quelle:
[1.] Wy/Fragment 036 19 - Diskussion
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Just as parliamentarians are not representatives of only part of the population, so also they are precluded from defending special interests, deputies and senators exercise their mandates freely and are not bound by any undertakings given before their election or instructions received from voters during their mandate. "[...] Just as parliamentarians are not representatives of only part of the population, so also they are precluded from defending special interests, deputies and senators exercise their mandates freely and are not bound by any undertakings given before their election or instructions received from voters during their mandate."" [sic]

"' [sic] Duhamcl, O. et Meny, Y., Dictionnaire constitutionnel, Paris, PUF, 1992, p. 619.

11 Ibid., pp. 619-620.

Anmerkungen

In der Quelle besteht ein Formatierungsproblem der Fußnotenbezeichnungen. Daher ist es nicht eindeutig, ob die Passage in der Quelle ein Zitat aus einer anderen Quelle ist (und aus welcher), aber in der Dissertation ist kein Zitat gekennzeichnet und keine Quelle angegeben.

Sichter
(Hindemith), SleepyHollow02

[2.] Wy/Fragment 043 10 - Diskussion
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The origins of freedom of speech may be traced back to the British Parliament’s session in early 1397, when the House of Commons adopted an act denouncing the scandalous behaviour of the court of Richard II, King of England, and the enormous financial burden it entailed. Thomas Haxey, MP, was tried and sentenced to death for treason as the instigator of an act aimed directly against the King and his court. However, as a result of pressure from the House of Commons, the sentence was not carried out and he was granted a pardon by the King. This incident led the House of Commons to consider the question of the right of parliamentarians to discuss and deliberate quite independently and freely without any interference from the Crown. As already mentioned, the history of freedom of speech is inextricably bound up with the constitutional history of the United Kingdom. It developed in parallel with the occasionally fierce and protracted struggle between the House of Commons and the Crown. 137

Almost three hundred years later, freedom of speech established as a principle in the House of Commons at the beginning of the sixteenth century, was [reaffirmed in Article 9 of the 1689 Bill of Rights,138 which expressly stipulated that discussions and acts by MPs were exempt from all forms of interference or contestation from outside Parliament.]


137 See, The First Chapter of the Paper.

[138 Article 9 of the 1689 Bill of Rights, “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” http://www.constitution.org/ eng/eng_bor.htm.]

As already mentioned, the history of freedom of speech is inextricably bound up with the constitutional history of the United Kingdom. It developed in parallel with the occasionally fierce and protracted struggle between the House of Commons and the Crown.

The origins of freedom of speech may be traced back to the British Parliament's session in early 1397, when the House of Commons adopted an act denouncing the scandalous behaviour of the court of Richard II, King of England, and the enormous financial burden it entailed. Thomas

[Seite 66]

Haxey, MP, was tried and sentenced to death for treason as the instigator of an act aimed directly against the King and his court. However, as a result of pressure from the House of Commons, the sentence was not carried out and he was granted a pardon by the King.

This incident led the House of Commons to consider the question of the right of parliamentarians to discuss and deliberate quite independently and freely without any interference from the Crown. Almost three hundred years later, freedom of speech, established as a principle in the House of Commons at the beginning of the sixteenth century, was reaffirmed in Article 9 of the 1689 Bill of Rights, which expressly stipulated that discussions and acts by MPs were exempt from all forms of interference or contestation from outside Parliament.

Anmerkungen

Ein Quellenverweis fehlt.

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(Hindemith) Singulus

[3.] Wy/Fragment 044 01 - Diskussion
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[Almost three hundred years later, freedom of speech established as a principle in the House of Commons at the beginning of the sixteenth century, was] reaffirmed in Article 9 of the 1689 Bill of Rights,138 which expressly stipulated that discussions and acts by MPs were exempt from all forms of interference or contestation from outside Parliament.

Today, it is still customary for Speakers, following their election at the start of the new session, to assert their rights before the House of Lords on behalf of the House of Commons, by humbly petitioning that the ancient and uncontested rights of the House of Commons be reaffirmed, particularly freedom of speech.139

The majorities of Commonwealth countries have been influenced by British tradition and have adopted similar provisions.140 But the principle of freedom of speech is not confined to the Commonwealth. The rule whereby parliamentarians cannot be prosecuted for opinions expressed or votes cast in exercise of their mandates exists in one form or another in almost all other countries.141

Therefore, the freedom of speech is not only relatively homogeneous but also a highly stable principle throughout the world. Most countries indicate that there have been no recent amendments to the relevant legislation.


138 Article 9 of the 1689 Bill of Rights, “That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.” http://www.constitution.org/ eng/eng_bor.htm.

139 Erskine May, 22th ed., pp.70-4.

140 Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.74.

141 Id.

Almost three hundred years later, freedom of speech, established as a principle in the House of Commons at the beginning of the sixteenth century, was reaffirmed in Article 9 of the 1689 Bill of Rights, which expressly stipulated that discussions and acts by MPs were exempt from all forms of interference or contestation from outside Parliament.

Today, it is still customary for Speakers, following their election at the start of the new session, to assert their rights before the House of Lords on behalf of the House of Commons, by humbly petitioning that the ancient and uncontested rights of the House of Commons be reaffirmed, particularly freedom of speech.74

The majority of Commonwealth countries have been influenced by British tradition and have adopted similar provisions. But the principle of freedom of speech or parliamentary non-accountability is not confined to the Commonwealth. The rule whereby parliamentarians cannot be prosecuted for opinions expressed or votes cast in exercise of their mandates exists in one form or another in almost all other countries [...]

Parliamentary non-accountability or "privilege" is therefore not only relatively homogeneous but also a highly stable principle throughout the world. Most countries indicate that there have been no recent amendments to the relevant legislation.75


74 Erskine May, op. cit.y[sic] pp. 70-74.

75 [...]

Anmerkungen

Die vorhandenen Quellenverweise (deren Seitenangabe jedoch falsch ist) machen nicht deutlich, dass hier weitläufig wörtlich übernommen wurde.

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(Hindemith) Singulus

[4.] Wy/Fragment 045 11 - Diskussion
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5.2 The Scope of Freedom of Speech

The scope of freedom of speech may be viewed from four different angles: Whom is the protection for? When does protection begin and end? Is the protection only within the precincts of Parliament or also beyond? What acts are covered by freedom of speech?

5.2.1 Person

Obviously, members of parliament are the prime beneficiaries in the case of freedom of speech, together with ministers who are also parliamentarians (in countries where the two offices are not incompatible).

In a number of countries— primarily but not exclusively those with a British parliamentary tradition (Canada, Netherlands, Switzerland, New Zealand),142 “protection is broader and extends to all persons taking part in parliamentary debates (such as ministers, even if they are not Members of parliament) or [participating in the proceedings”.143]


142 Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.75.

143 Myttenacre, R., The Immunities of Members of Parliaments Constitutional and Parliamentary Information, ASGP, 1998, p.104.

(b) Scope

The scope of parliamentary non-accountability (freedom of speech) may be viewed from four different angles: ratione personae (protection for whom?), ratione temporis (when does protection begin and end?), ratione loci (protection only within the precincts of parliament or also beyond?) and ratione materiae (what acts are covered by non-accountability?).

Ratione personae

Obviously, members of parliament are the prime beneficiaries in the case of parliamentary non-accountability, together with ministers who are also parliamentarians (in countries where the two offices are not incompatible).76

In a number of countries — primarily but not exclusively those with a British parliamentary tradition (Canada, Netherlands, Switzerland, New Zealand), "protection is broader and extends to all persons taking part in parliamentary debates (such as ministers, even if they are not members of parliament) or participating in the proceedings».77


7f! [sic] In sonic [sic] countries, however (Belgium, Guinea), ministers enjoy a special category of non-accountability related to their ministerial office. In Romania, the legal non-accountability regime in respect of the political opinions of parliamentarians is also applicable to the President of the Republic.

77 Myttenacre, R., op. tit., p. 104.

Anmerkungen

Der vorhandene Quellenverweis verweist auf die falsche Seite und macht den Umfang und den z.T. wörtlichen Charakter der Übernahmen nicht deutlich.

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(Hindemith) Singulus

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This is the case in Australia and the United Kingdom for example, where freedom of speech extends to everybody involved in the proceedings of parliament (officials, witnesses, lawyers, petitioners). 144 Ireland has recently adopted an amendment to its legislation providing for freedom of speech for witnesses summoned to appear before parliamentary committees. Such witnesses enjoy total immunity and may not be prosecuted for words spoken during committee meetings. In Kenya, Namibia, Sri Lanka, Zambia and to some extent in Bangladesh, protection also extends to parliamentary officials. In the Philippines, Members’ assistants are also protected.145

In countries that are more influenced by French tradition, nonaccountability applies, in principle, only to parliamentarians.146 It should be noted, however, that, pursuant to the Act of 29 July 1881 concerning freedom of the press, French case [law recognises that protection also extends to witnesses appearing before parliamentary committees of inquiry.147]


144 Robert Myttenaere, Moscow Session (September 1998), The Immunities of Members of Parliament,http://www.asgp. info/Resources/Data/ Documents/UJJICUIPKRGKNWTBNCAMS ZFAGOKNXL.pdf.

145 See, Id.

146 See, Article 26 of Constitution of France [...]

147 Paris Court of Appeal, 16 January 1984; “It is considered that the statements of witnesses before a committee of inquiry enjoy the immunity applicable to reports and documents published by order of the National Assembly and the Senate, except for defamatory or injurious statements that have no bearing on the parliamentary inquiry or are made with malicious intent.” Quoted Marc Van der Hulst,The Parliamentary Mandate, IPU, 2000, p.75.

This is the case in Australia and the United Kingdom for example, where freedom of speech extends to everybody involved in the proceedings of parliament (officials, witnesses, lawyers, petitioners).7*4 [sic] Ireland has recently adopted an amendment to its legislation providing for freedom of speech for witnesses summoned to appear before parliamentary committees. Such witnesses enjoy total immunity and may not be prosecuted for words spoken during committee meetings.

In Kenya, Namibia, Sri Lanka, Zambia and to some extent in Bangladesh, protection also extends to parliamentary officials. In the Philippines, members' assistants are also protected.

In countries that are more influenced by French tradition, nonaccountability applies, in principle, only to parliamentarians. It should be noted, however, that, pursuant to the Act of 29 July 1881 concerning freedom

[Seite 68]

of the press, French case law recognises that protection also extends to witnesses appearing before parliamentary committees of inquiry.7y[sic]


7S[sic] It also applies to debates in committee and sessions of the House of Lords sitting in its judicial capacity.

w[sic] Paris Court of Appeal, 16 January 1984; "It is considered that the statements of witnesses before a committee of inquiry enjoy the immunity applicable to reports and documents published by order of the National Assembly and the Senate, except for defamatory or injurious statements that have no bearing on the parliamentary inquiry or are made with malicious intent."

Anmerkungen

Der Verweis auf die Quelle bezieht sich nur auf das Zitat in der Fußnote 147, und die wörtlichen Übernahmen sind nicht gekennzeichnet.

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[It should be noted, however, that, pursuant to the Act of 29 July 1881 concerning freedom of the press, French case] law recognises that protection also extends to witnesses appearing before parliamentary committees of inquiry.147

5.2.2 Time

In some countries, “Members of parliament enjoy protection from the time of their election, on condition that the election is not subsequently declared invalid.” 148 This is the case in many countries with a French parliamentary tradition (Belgium, Italy) 149 and in many of the new democracies of Eastern Europe (Czech Republic, Estonia, Poland, Slovenia). 150 In other countries (including Mali, Russian Federation),151 protection is granted after the member’s election has been validated. In some cases, the oath-taking ceremony is the point of departure for protection. Freedom of speech applies only during sittings in a number of countries with a British parliamentary tradition (Australia, United Kingdom) and in Egypt, The Former Yugoslav Republic of Macedonia, Malaysia and the Philippines.152 Needless to say, Members in these countries enjoy non-accountability only with effect from the first sitting. In many other countries,[protection is afforded in all circumstances, regardless of whether parliament is in session.]


147 Paris Court of Appeal, 16 January 1984; “It is considered that the statements of witnesses before a committee of inquiry enjoy the immunity applicable to reports and documents published by order of the National Assembly and the Senate, except for defamatory or injurious statements that have no bearing on the parliamentary inquiry or are made with malicious intent.” Quoted Marc Van der Hulst,The Parliamentary Mandate, IPU, 2000, p.75.

148 See, Robert Myttenaere, Moscow Session (September 1998),The Immunities of Members of Parliamen,http://www.asgp. info/Resources/Data/ Documents/UJJICUIPKRGKNWTBNCAMS ZFAGOKNXL.pdf.

149 Marc Van der Hulst,The Parliamentary Mandate,Geneva: Inter-Parliamentary Union, 2000, p.76.

150 See, Robert Myttenaere, Moscow Session (September 1998),The Immunities of Members of Parliament,http://www.asgp. info/Resources/Data/ Documents/UJJICUIPKRGKNWTBNCAMS ZFAGOKNXL.pdf.

151 Id.

152 Id.

It should be noted, however, that, pursuant to the Act of 29 July 1881 concerning freedom

[Seite 68]

of the press, French case law recognises that protection also extends to witnesses appearing before parliamentary committees of inquiry.7y[sic]

Ratione temporis

In some countries, "members of parliament enjoy protection from the time of their election, on condition that the election is not subsequently declared invalid.".8"[sic] This is the case in many countries with a French parliamentary tradition (Belgium, Italy) and in many of the new democracies of Eastern Europe (Czech Republic, Estonia, Poland, Slovenia). In other countries (including Mali, Russian Federation), protection is granted after the member's election has been validated. In some cases, the oath-taking ceremony is the point of departure for protection [...]

Freedom of speech applies only during sittings in a number of countries with a British parliamentary tradition (Australia, United Kingdom) and in Egypt, The former Yugoslav Republic of Macedonia, Malaysia and the Philippines. Needless to say, members in these countries enjoy non-accountability only with effect from the first sitting. In many other countries, protection is afforded in all circumstances, regardless of whether parliament is in session.


w[sic] Paris Court of Appeal, 16 January 1984; "It is considered that the statements of witnesses before a committee of inquiry enjoy the immunity applicable to reports and documents published by order of the National Assembly and the Senate, except for defamatory or injurious statements that have no bearing on the parliamentary inquiry or are made with malicious intent."

m[sic] Myttenaere, R„[sic] op. cit., p. 105.

Anmerkungen

Die vorhandenen Quellenverweise decken die weitläufigen, wörtlichen Übernahmen nicht ab.

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[In many other countries,] protection is afforded in all circumstances, regardless of whether parliament is in session. This rule is applied, inter alia, by certain Nordic countries (Denmark, Finland, Norway153), countries influenced by French tradition (Gabon, Guinea, Italy, Mali, Spain) as well as Austria, Greece, Kenya, Kuwait, Mongolia, Poland, Romania, the Russian Federation, Switzerland, Sri Lanka and Thailand.154

In all the cases considered, the freedom of speech ends with the expiry of a member’s term of office or the dissolution of parliament. It remains valid, however, for words spoken and votes cast during the exercise of his or her mandate. Moreover, non-accountability is subject to no time limit in the case of parliamentary proceedings and votes that are published in various forms.

5.2.3 Where

In most countries,155 the enjoyment of freedom of speech is related to the exercise of a parliamentary mandate rather than to the place in which the contested statements were made. Therefore, the privilege of freedom of speech is not limited in space, since it exists both within and outside parliament. On the other hand, acts that are unrelated to the exercise of a parliamentary mandate are excluded from nonaccountability, even if they occur within the precincts of parliament.

In a number of countries (Bangladesh, Cyprus, Egypt, Estonia, Finland, Germany, India, Kenya, Malaysia, Namibia, Norway, Philippines, United [Kingdom, Zambia), 156 freedom of speech applies only within the parliament buildings and all other locations are excluded.]


[150 See, Robert Myttenaere, Moscow Session (September 1998),The Immunities of Members of Parliament, http://www.asgp.info/ Resources/Data/Documents/ UJJICUIPKRGKNWTBNCAMSZFAGOKNXL.pdf.]

153 Id.

154 Id.

155 See, Marc Van der Hulst, The Parliamentary Mandate,Geneva: Inter-Parliamentary Union, 2000, p.77.

156 See, Robert Myttenaere, Moscow Session (September 1998),The Immunities of Members of Parliament, http://www.asgp.info/ Resources/Data/Documents /UJJICUIPKRGKNWTBNCAMSZFAGOKNXL.pdf.

In many other countries, protection is afforded in all circumstances, regardless of whether parliament is in session. This rule is applied, inter alia, by certain Nordic countries (Denmark, Finland, Norway), countries influenced by French tradition (Gabon, Guinea, Italy, Mali, Spain) as well as Austria, Greece, Kenya, Kuwait, Mongolia, Poland, Romania, the Russian Federation, Switzerland, Sri Lanka and Thailand.

In all the cases considered, parliamentary non-accountability ends with the expiry of a member's term of office or the dissolution of parliament. It remains valid, however, for words spoken and votes cast during the exercise of his or her mandate. Moreover, non-accountability is subject to no time limit in the case of parliamentary proceedings and votes that are published in various forms.

[Seite 69]

Ratione loci

In most countries, the enjoyment of parliamentary non-accountability is related to the exercise of a parliamentary mandate rather than to the place in which the contested statements were made. The privilege of freedom of speech is therefore not limited in space, since it exists both within and outside parliament.81 On the other hand, acts that are unrelated to the exercise of a parliamentary mandate are excluded from nonaccountability, even if they occur within the precincts of parliament.

In a number of countries (Bangladesh, Cyprus, Egypt, Estonia, Finland, Germany, India, Kenya, Malaysia, Namibia, Norway, Philippines, United Kingdom, Zambia), freedom of speech applies only within the parliament buildings and all other locations are excluded.


[m[sic] Myttenaere, R„ op. cit., p. 105.]

1,1[sic] Ibid., p. 106.

Anmerkungen

Der vorhandene Quellenverweis verweist auf die falsche Seite der Quelle und unabhängig davon macht nicht deutlich, dass die gesamte Seite wörtlich übernommen wurde.

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(Hindemith), SleepyHollow02

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[In a number of countries (Bangladesh, Cyprus, Egypt, Estonia, Finland, Germany, India, Kenya, Malaysia, Namibia, Norway, Philippines, United] Kingdom, Zambia), 156 freedom of speech applies only within the parliament buildings and all other locations are excluded. For example, in the English “the privilege is limited by a strict definition of ‘proceedings in Parliament’ confining them to ‘everything said or done by a Member in the exercise of his functions as a Member in a Committee of either House, as well as everything said or done in either House in the transaction of parliamentary business’ ”. MPs remain responsible, like any other citizen, for what they do outside proceedings in Parliament, even where their actions relate to matters connected with their parliamentary functions, such as constituency duties.157

Thus, letters written on behalf of constituents to Ministers, Government Departments or public bodies would be unlikely to be considered by the courts of law as enjoying parliamentary privilege The restriction in terms of location is sometimes even stricter: in Malaysia and Thailand, the non-accountability privilege is restricted to the floor of the assembly,158 in Bangladesh and Zambia to the floor of the assembly and committees,159 in South Africa to words spoken from the rostrum and statements from the floor of the House or in committee.160


156 See, Robert Myttenaere, Moscow Session (September 1998),The Immunities of Members of Parliament, http://www.asgp.info /Resources/Data/Documents/ UJJICUIPKRGKNWTBNCAMSZFAGOKNXL.pdf.

157 See, Parliamentary Immunity in the Member States of the European Community and in the European Parliament, Luxembourg, European Parliament, 1993, pp.101, 104-105.

158 See, Robert Myttenaere, Moscow Session (September 1998),The Immunities of Members of Parliament, http://www.asgp.info/ Resources/Data/Documents/ UJJICUIPKRGKNWTBNCAMSZFAGOKNXL.pdf.

159 Id.

160 Id.

In a number of countries (Bangladesh, Cyprus, Egypt, Estonia, Finland, Germany, India, Kenya, Malaysia, Namibia, Norway, Philippines, United Kingdom, Zambia), freedom of speech applies only within the parliament buildings and all other locations are excluded.

In the United Kingdom, for example, "the privilege is limited by a strict definition of 'proceedings in Parliament' confining them to 'everything said or done by a Member in the exercise of his functions as a Member in a Committee of either House, as well as everything said or done in either House in the transaction of parliamentary business'". MPs remain responsible, like any other citizen, for what they do outside proceedings in Parliament, "even where their actions relate to matters connected with their parliamentary functions, such as constituency duties. Thus, letters written on behalf of constituents to Ministers, Government Departments or public bodies would be unlikely to be considered by the courts of law as enjoying parliamentary privilege".*2[sic]

[Seite 70]

The restriction in terms of location is sometimes even stricter: in Malaysia and Thailand, the non-accountability privilege is restricted to the floor of the assembly, in Bangladesh and Zambia to the floor of the assembly and committees, in South Africa to words spoken from the rostrum and statements from the floor of the House or in committee.


*:[sic] [...] Parliamentary Immunity in the Member States of the European Community and in the European Parliament, Luxembourg, European Parliament, 1993, pp. 101, and 104-105.

Anmerkungen

Ein Verweis auf die (eigentliche) Quelle fehlt.

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(Hindemith), SleepyHollow02

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In Sweden, non-accountability is limited to acts related to normal parliamentary activities, such as the plenary sittings and meetings of the Riksdag’s organs (committees, electoral committee, conference of Presidents), but does not apply to the Board of Administration, the auditors, or the committee that checks the validity of ballots.161

5.2.4 Material

Words spoken are from the floor of the house or elsewhere. Statements from the floor of the house or in committee, bills or proposed resolutions, votes, written or oral questions and interpellations are universally viewed as being eligible for protection under the heading of freedom of speech.

In most countries, the same applies to suspensions of sittings, but there are some exceptions (Australia, Croatia, Czech Republic, Egypt, Gabon, Germany, Ireland, Kenya, Malaysia, New Zealand, Norway, Republic of Korea, Slovenia, Thailand, The Former Yugoslav Republic of Macedonia).162 While words spoken in the course of activities by political groups also enjoy the protection of parliamentary non-accountability in quite a few countries (Belarus, Belgium, Burkina Faso, Gabon, Germany, Greece, Guinea, Hungary, Mongolia, Portugal, Romania, Russian Federation, The former Yugoslav Republic of Macedonia, Uruguay),163 this privilege is not recognised in most countries, particularly those with a British parliamentary tradition.


161 See, Marc Van der Hulst, The Parliamentary Mandate,Geneva: Inter-Parliamentary Union, 2000, p.70.

162 See, Robert Myttenaere, Moscow Session (September 1998), The Immunities of Members of Parliament, http://www.asgp.info/ Resources/Data/Documents/ UJJICUIPKRGKNWTBNCAMS ZFAGOKNXL.pdf.

163 Id.

In Sweden, non-accountability is limited to acts related to normal parliamentary activities, such as the plenary sittings and meetings of the Riksdag's organs (committees, electoral committee, conference of Presidents), but does not apply to the Board of Administration, the auditors, or the committee that checks the validity of ballots.

Ratione materiae

Words spoken from the floor of the house or elsewhere Statements from the floor of the house or in committee, bills or proposed resolutions, votes, written or oral questions and interpellations are universally viewed as being eligible for protection under the heading of parliamentary non-accountability.

In most countries, the same applies to suspensions of sittings, but there are some exceptions (Australia, Croatia, Czech Republic, Egypt, Gabon, Germany, Ireland, Kenya, Malaysia, New Zealand, Norway, Republic of Korea, Slovenia, Thailand, The former Yugoslav Republic of Macedonia).

While words spoken in the course of activities by political groups also enjoy the protection of parliamentary non-accountability in quite a few countries (Belarus, Belgium, Burkina Faso, Gabon, Germany, Greece, Guinea, Hungary, Mongolia, Portugal, Romania, Russian Federation, The former Yugoslav Republic of Macedonia, Uruguay), this privilege is not recognised in most countries, particularly those with a British parliamentary tradition.

Anmerkungen

Der vorhandene Quellenverweis macht nicht deutlich, dass die gesamte Seite wörtlich übernommen wurde.

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(Hindemith), SleepyHollow02

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Reproduction of words spoken in parliament.In most countries, a member cannot be held accountable for words or votes recorded in official parliamentary publications (minutes and other records of sittings drafted by parliamentary departments). 164 Opinions are divided, however, on the question of whether members of parliament may invoke the privilege of non-accountability when they repeat, in the press or other publications, words they have spoken in the assembly. 165 In some countries, protection extends without restriction to the repetition outside parliament of words spoken in parliament. In most countries, however, members cannot claim non-accountability in such situations. In the United Kingdom, for example, MPs repeating words spoken during parliamentary proceedings outside the context of Parliament “would not be protected from actions for defamation, although the Courts would not allow evidence of proceedings within the House to be used in support of an action in respect of other words or actions of a Member outside Parliament”. 166 Verbal or written communications between an MP and a minister, or between two MPs, on subjects with a close bearing on proceedings in the House or in committee would nevertheless generally be considered to fall within the protected ambit of freedom of speech.

Words spoken are during debates on radio or television or at political gatherings. In a small number of countries (such as Russian Federation), participation in [televised or radio debates and interviews is protected by freedom of speech.167]


164 Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.78.

165 Myttenacre, R., The Immunities of Members of Parliaments Constitutional and Parliamentary Information, ASGP, 1998, p.107.

166 Parliamentary Immunity in the Member States of the European Community and in the European Parliament, Luxembourg, European Parliament, 1993, p.101.

167 Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.78.

Reproduction of words spoken in parliament

In most countries, a member cannot be held accountable for words or votes recorded in official parliamentary publications (minutes and other records of sittings drafted by parliamentary departments).

Opinions are divided, however, on the question of whether members of parliament may invoke the privilege of non-accountability when they repeat, in the press or other publications, words they have spoken in the

[Seite 71]

assembly.83 In some countries (Austria, Burkina Faso, Croatia, Greece, Guinea, Hungary, Italy, Mali, Mozambique, Portugal, Romania, Slovenia, Uruguay), protection extends without restriction to the repetition outside parliament of words spoken in parliament. In most countries, however, members cannot claim non-accountability in such situations. In the United Kingdom, for example, MPs repeating words spoken during parliamentary proceedings outside the context of Parliament "would not be protected from actions for defamation, although the Courts would not allow evidence of proceedings within the House to be used in support of an action in respect of other words or actions of a Member outside Parliament".84 Verbal or written communications between an MP and a minister, or between two MPs, on subjects with a close bearing on proceedings in the House or in committee would nevertheless generally be considered to fall within the protected ambit of freedom of speech.

Words spoken during debates on radio or television or at political gatherings

In a small number of countries (Belarus, Burkina, Faso, Egypt, Gabon, Greece, Guinea, Hungary, Kenya, Mongolia, Romania, Russian Federation, Uruguay), participation in televised or radio debates and interviews is protected by freedom of speech.


*'[sic] Myttenacre, R., op. cit., p. 107.

K4[sic] Parliamentary Immunity in the Member States of the European Community and in the European Parliament, op. tit., p, 101.

Anmerkungen

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Man beachte, dass in der Dissertation Zwischenüberschriften der Quelle in den Fließtext übernommen wurden.

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[11.] Wy/Fragment 052 01 - Diskussion
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[In a small number of countries (such as Russian Federation), participation in] televised or radio debates and interviews is protected by freedom of speech.167 Generally, however, words spoken during debates on radio or television are not protected, although the rule is qualified in some circumstances. According to French case law, non-accountability is not applicable to words spoken by parliamentarians in a radio interview or to reports drafted by parliamentarians in the context of a mission undertaken for the Government.168 In Australia, nonaccountability is not applicable either to radio or television broadcasts. However, an exception is made for “compulsory” records of parliamentary proceedings on radio and television. The Parliamentary Proceedings Broadcasting Act of 1946 affords immunity from judicial proceedings ensuing from the (unedited) broadcasting of parliamentary proceedings by the Australian Broadcasting Corporation. 169 Qualified immunity from prosecution exists in respect of fragmentary records (in the form of extracts), which are deemed to be “privileged” unless the words spoken display malicious intent or are inspired by inadmissible motives (e.g. publicity for political parties or in the context of an electoral campaign, satire or mockery, commercial motives). In Namibia, parliamentary non-accountability does not apply to televised or radio debates, unless they take place “at the request of Parliament”.170 In Poland, non-accountability does not apply to debates or interviews, unless they are “indissociable” from parliamentary [proceedings. 171]

167 Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.78.

168 Id.

169 Id.

170 See, Robert Myttenaere, Moscow Session (September 1998),The Immunities of Members of Parliament, http://www.asgp.info/ Resources/Data/Documents/ UJJICUIPKRGKNWTBNCAMS ZFAGOKNXL.pdf.

171 Id.

In a small number of countries (Belarus, Burkina, Faso, Egypt, Gabon, Greece, Guinea, Hungary, Kenya, Mongolia, Romania, Russian Federation, Uruguay), participation in televised or radio debates and interviews is protected by freedom of speech.

Generally, however, words spoken during debates on radio or television are not protected, although the rule is qualified in some circumstances. According to French case law, non-accountability is not applicable to words spoken by parliamentarians in a radio interview or to reports drafted by parliamentarians in the context of a mission undertaken for the Government.85 In Australia, non-accountability is not applicable either to radio or television broadcasts. However, an exception is made for "compulsory'1 [sic] records of parliamentary

[Seite 72]

proceedings on radio and television. The Parliamentary Proceedings Broadcasting Act of 1946 affords immunity from judicial proceedings ensuing from the (unedited) broadcasting of parliamentary proceedings by the Australian Broadcasting Corporation. Qualified immunity from prosecution exists in respect of fragmentary records (in the form of extracts), which are deemed to be "privileged" unless the words spoken display malicious intent or are inspired by inadmissible motives (e.g. publicity for political parties or in the context of an electoral campaign, satire or mockery, commercial motives). In Namibia, parliamentary non-accountability does not apply to televised or radio debates, unless they take place "at the request of Parliament". In Poland, non-accountability does not apply to debates or interviews, unless they are "indissociable" from parliamentary proceedings.


*s[sic] Two schools of thought long coexisted in France on the issue of parliamentary nonaccountability. [...]

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[12.] Wy/Fragment 053 01 - Diskussion
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In Italy, words spoken during an interview may be accorded privileged status if they bear some relationship to parliamentary activities.172

Political gatherings are usually excluded from the scope of parliamentary non-accountability, but there are some exceptions.


[170 See, Robert Myttenaere, Moscow Session (September 1998),The Immunities of Members of Parliament, http://www.asgp.info/ Resources/Data/Documents/ UJJICUIPKRGKNWTBNCAMSZFAGOKNXL.pdf.]

172 Id.

In Italy, words spoken during an interview may be accorded privileged status if they bear some relationship to parliamentary activities.

Political gatherings are usually excluded from the scope of parliamentary non-accountability, but there are some exceptions

Anmerkungen

Ein Quellenverweis fehlt. Die Übernahme hat schon auf den Vorseiten begonnen.

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[13.] Wy/Fragment 056 03 - Diskussion
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6 Freedom from Arrest (Inviolability)

6.1 The Origin of Freedom from Arrest

Like freedom of speech, freedom from arrest is a concept with deep roots in English history. This type of privilege, which protects members from arrest and assault, was demanded by the House of Commons as early as the fifteenth century. It was generally accepted in civil cases but protection against the monarch was more limited in scope until the political changes of the seventeenth century gave Parliament overriding authority. “Parliament made several attempts to balance the need for its Members to be free to attend to their duties without fear of arrest against the rights of members of the public in civil causes. Parts of two Acts which sought to strike this balance, the Privilege of Parliament Act 1603 and the Parliamentary Privilege Act 1737, are still on the Statute book.”181

While Members of the British Parliament have thus long enjoyed “freedom of speech” that protects them from arrest, this privilege was soon withdrawn in criminal cases.182 The only element which now remains is a duty imposed on the head of the local police force to inform the Lord Chancellor or the Speaker of any arrest that is followed by detention. If a Peer or Member is sentenced to a term of imprisonment, the court similarly informs the Lord Chancellor or the Speaker. A member can even be arrested in the precincts of the House in respect of a criminal [offence.183]


181 M.Crespo Allen, Parliamentary Immunity in the Member States of the European Union and the European Parliament, Brussels: European Parliament, ECPRD, 1999, p.100.

182 Erskine May, 22th ed., p.75.

183 M.Crespo Allen, Parliamentary Immunity in the Member States of the European Union and the European Parliament(Brussels: European Parliament, ECPRD, 1999, p.100, In 1815, the House of Commons Committee on Privileges stated that the arrest of a Member had not violated parliamentary privilege, since he had been convicted of an indictable offence —even though he had been arrested within the Chamber itself.

3. Parliamentary inviolability/immunity

(a) Fear of the Executive

Like freedom of speech, freedom from arrest is a concept with deep roots in English history. This type of "inviolability", which protects members from arrest and assault, was demanded by the House of Commons as early as the fifteenth century. It was generally accepted in civil cases but protection against the monarch was more limited in scope until the political changes of the seventeenth century gave Parliament overriding authority. "Parliament made several attempts to balance the need for its Members to be free to attend to their duties without fear of arrest against the rights of members of the public in civil causes. Parts of two Acts which sought to strike this balance, the Privilege of Parliament Act 1603 and the Parliamentary Privilege Act 1737, are still on the Statute book."102

While Members of the British Parliament have thus long enjoyed "inviolability" that protects them from arrest, this privilege was soon withdrawn in criminal cases.1M[sic] "The only element which now remains is a duty imposed on the head of the local police force to inform the Lord

[Seite 79]

Chancellor or the Speaker of any arrest that is followed by detention. If a Peer or Member is sentenced to a term of imprisonment, the court similarly informs the Lord Chancellor or the Speaker. A member can even be arrested in the precincts of the House in respect of a criminal offence."1114[sic]


102 Parliamentary Immunity in the Member States of the European Community and in the European Parliament, op. cit., p. 100.

Im [sic] Erskine May, op. cit., p. 75.

104 Parliamentary Immunity in the Member States of the European Community and in the European Parliament, op, cit., p. 100. In 1815, the House of Commons Committee on Privileges stated that the arrest of a Member had not violated parliamentary privilege, since he had been convicted of an indictable offence — even though he had been arrested within the Chamber itself.

Anmerkungen

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Freedom of arrest thus protects a parliamentarian from arrest only in civil cases, i.e. in all cases other than criminal proceedings. While this was no doubt advantageous at a time when imprisonment for debt was not unusual, now that arrest or detention for civil offences is almost obsolete in the United Kingdom184 and most other Commonwealth countries, this type of inviolability serves little purpose. It means, for example, that a writ or summons cannot be served on a Member within the precincts of Parliament without the latter’s authorisation.

184 Erskine May, 22th ed., p.79.

Inviolability thus protects a parliamentarian from arrest only in civil cases, i.e. in all cases other than criminal proceedings. While this was no doubt advantageous at a time when imprisonment for debt was not unusual, now that arrest or detention for civil offences is almost obsolete in the United Kingdomm[sic] and most other Commonwealth countries, this type of inviolability serves little purpose. It means, for example, that a writ or summons cannot be served on a Member within the precincts of Parliament without the latter's authorisation.

,m [sic] Erskine May, op. cit., p. 79.

Anmerkungen

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[15.] Wy/Fragment 058 09 - Diskussion
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In France,190 following the 1789 revolution, it became necessary to guarantee both the non-accountability of parliamentarians for opinions expressed in the exercise of their duties and their inviolability. The latter was recognised in the Decree of 26 June 1790, which guaranteed protection for members of the Assembly against indictment without the latter’s authorisation. The 1791 Constitution, which contains the first constitutional provision governing immunity, establishes the basic principle underlying the regime: “The representatives of the Nation] may, in the case of criminal offences, be arrested in flagrante delicto or on presentation of an arrest warrant; but the Legislature shall be notified thereof forthwith; and the proceedings may not continue until the Legislature has decided whether or not the charge is founded.” As already stressed, the relatively broader scope of parliamentary inviolability in France is closely bound up with the pre-eminent position secured by the National Assembly through the revolution and [with fear of the Executive, which was ubiquitous on the continent.]

190 See, Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, pp.78-80.

In France, following the 1789 revolution, it became necessary to guarantee both the non-accountability of parliamentarians for opinions expressed in the exercise of their duties and their inviolability. The latter was recognised in the Decree of 26 June 1790, which guaranteed protection for members of the Assembly against indictment without the latter's authorisation. The 1791 Constitution, which contains the first constitutional provision governing immunity, establishes the basic principle underlying the regime: "[The representatives of the Nation] may, in the case of criminal offences, be arrested in flagrante delicto or on presentation of an arrest warrant; but the Legislature shall be notified thereof forthwith; and the proceedings may not continue until the Legislature has decided whether or not the charge is founded." As already stressed, the relatively broader scope of parliamentary inviolability in France is closely bound up with the pre-eminent position secured by the National Assembly through the revolution and with fear of the Executive, which was ubiquitous on the continent.
Anmerkungen

Der Quellenverweis ist zum einen ungenau ("78-80", wenn sich der gesamte Text auf S. 79 findet) und zum anderen macht er keineswegs deutlich, dass eine weitläufige Passage wörtlich abgeschrieben wurde.

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It was this fear that gave rise to the principle whereby responsibility for establishing whether proceedings are fair and well-founded and not attributable to persecution on political or personal grounds lies with a committee that reports to the Assembly. It was this fear that gave rise to the principle whereby responsibility for establishing whether proceedings are fair and well-founded and not attributable to persecution on political or personal grounds lies with a committee that reports to the Assembly.
Anmerkungen

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The notion is sometimes interpreted somewhat broadly. In Germany, for example, parliamentarians cannot invoke immunity if they are arrested the day after the offence is committed.203

203 Artikel 46, Abs.2, GG.

The notion is sometimes interpreted somewhat broadly. In Germany, for example, parliamentarians cannot invoke immunity if they are arrested the day after the offence is committed.
Anmerkungen

Wörtliche Übernahme ohne Quellenangabe.

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8 The Power of Discipline 255

Members of parliamentary assemblies are required, like their counterparts in other organised bodies, to comply with common rules of conduct and to establish an authority responsible for ensuring observance of the rules.

In some countries,256 the Constitution explicitly authorises assemblies to establish the rules of conduct and ensure their observance.257 In others, the right is a natural extension of the assembly’s right to regulate its own functioning. Common rules of conduct are almost always written down, either in aspecific [sic] act of parliament or in the assembly’s standing orders.258


25% See, Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.112-127.

256 Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.112.

257 For example, The Constitution of the United States of America stipulates that: Each House may determine the Rules of its proceedings, punish its Members for disorderly behavior, and, with the concurrence of two thirds, expel a Member.

258 The Belgian Constitution stipulates that: Each Chamber shall determine, in its rules of procedure, the way in which its responsibilities shall be discharged.

III. Discipline

1. Introduction

Members of parliamentary assemblies are required, like their counterparts in other organised bodies, to comply with common rules of conduct and to establish an authority responsible for ensuring observance of the rules.

In some countries, the Constitution explicitly authorises assemblies to establish the rules of conduct and ensure their observance.155 In others, the right is a natural extension of the assembly’s right to regulate its own functioning.156

Common rules of conduct are almost always written down, either in a specific act of parliament or in the assembly's standing orders.


155 The Constitution of the United Stales of America stipulates that: «Each House may determine the Rules of its proceedings, punish its Members for disorderly behavior, and. with the concurrence of two thirds, expel a Member.»

156 The Belgian Constitution stipulates that: «Each Chamber shall determine, in its rules of procedure, the way in which its responsibilities shall be discharged.»

Anmerkungen

Die wörtlichen Übernahmen sind durch die zwei Quellenverweise nicht abgedeckt.

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The rules governing parliamentary discipline are all in some ways designed to ensure the smooth conduct of business. The most graphic example is the prohibition of the use of force of any kind and the explicit (Slovakia) or implicit ban on carrying weapons.259

Secondly, threats, intimidation, provocation and insults are prohibited in almost every parliamentary assembly.

The third category of disciplinary rules is no doubt the most important, both quantitatively and in terms of its practical impact. The rules in question may be broadly designated as measures intended to prevent “unlawful” obstruction of the proceedings. By this is meant cases in which parliamentarians clearly refuse to obey the rules of procedure and try to create an obstruction by word or deed. There is a long list of such “unlawful” procedures, of which we shall mention just a few: Taking the floor without the speaker’s authorisation; Refusing to conclude a statement or to leave the podium; Ignoring a call to order; Refusing to defer to the authority of the speaker; Introducing extraneous material into a statement or being tediously repetitive, etc.260

The fourth category of disciplinary rules is designed to preserve the dignity of the assembly. Almost all assemblies prohibit language or behaviour liable to undermine their dignity. Preservation of dignity is actually the source of the dress code in some countries, particularly those with a British parliamentary tradition (Canada, Egypt, Zambia and Zimbabwe).261


259 Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.113.

260 Id.

261 Id.

The rules governing parliamentary discipline are all in some way designed to ensure the smooth conduct of business.

The most graphic example is the prohibition of the use of force of any kind and the explicit (Slovakia) or implicit ban on carrying weapons.

Secondly, threats, intimidation, provocation and insults are prohibited in almost every parliamentary assembly.

The third category of disciplinary rule is no doubt the most important, both quantitatively and in terms of its practical impact. The rules in question may be broadly designated as measures intended to prevent "unlawful" obstruction of the proceedings. By this is meant cases in which parliamentarians clearly refuse to obey the rules of procedure and try to create an obstruction by word or deed. There is a long list of such "unlawful" procedures, of which we shall mention just a few: taking the floor without the speaker’s authorisation; refusing to conclude a statement or to leave the podium; ignoring a call to order; refusing to defer to the authority of the speaker; introducing extraneous material into a statement or being tediously repetitive, etc.

A fourth category of disciplinary rules is designed to preserve the dignity of the assembly. Almost all assemblies prohibit language or behaviour liable to undermine their dignity. Preservation of dignity is actually the source of the dress code in some countries, particularly those with a British parliamentary tradition (Canada, Egypt, Zambia, Zimbabwe).

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[In the Indian Rajya Sabha, the Rules] contain a lengthy chapter on parliamentary etiquette, which stipulates, inter alia, that entering the chamber with a jacket on one’s arm is inappropriate and contrary to the decorum of the House. The vast numbers of rules of parliamentary conduct make it virtually impossible to provide a comprehensive overview.262 We have therefore decided to confine ourselves to a compilation of existing disciplinary sanctions and the authorities authorised to impose them.

8.1 Disciplinary Sanctions

Assemblies (or their bureaux or business committees) may impose a wide range of penalties on members who fail to respect their rules of conduct. They are described below in order of severity, from a simple call to order to suspension and expulsion.

8.1.1 From a Call to Order to Censure with Temporary Expulsion

A call to order is not only the most lenient disciplinary sanction but also the most widespread. It is usually applicable to members who disrupt the debate or the order of the house. In almost all assemblies, it is the presiding officer who calls a member to order. It should be noted, however, that the presiding officer at the sitting in question may not always be the speaker of the assembly.

In countries influenced by French tradition, the next step up in terms of severity is usually a call to order with a corresponding entry in the record. In the French National Assembly, 263 the President may impose this penalty on any deputy who, at the same sitting, has already been called to order or who has insulted, provoked or threatened one or more of his or her colleagues.


[259 Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter Parliamentary Union, 2000, p.113.]

262 Id.

263 Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.114.

In the Indian Rajya Sabha, the Rules contain a lengthy chapter on parliamentary etiquette, which stipulates, inter alia, that entering the chamber with a jacket on one's arm is inappropriate and contrary to the decorum of the House.

The vast number of rules of parliamentary conduct make it virtually impossible to provide a comprehensive overview. We have therefore decided to confine ourselves to a compilation of existing disciplinary sanctions and the authorities authorised to impose them.

[Seite 114]

2. Disciplinary sanctions

Assemblies (or their bureaux or business committees) may impose a wide range of penalties on members who fail to respect their rules of conduct. They are described below in order of severity, from a simple call to order to suspension and expulsion.

(a) From a call to order to censure with temporary expulsion

A call to order is not only the most lenient disciplinary sanction but also the most widespread. It is usually applicable to members who disrupt the debate or the order of the house. In almost all assemblies, it is the presiding officer who calls a member to order. It should be noted, however, that the presiding officer at the sitting in question may not always be the speaker of the assembly.

In countries influenced by French tradition, the next step up in terms of severity is usually a call to order with a corresponding entry in the record. In the French National Assembly, the President may impose this penalty on any deputy who, at the same sitting, has already been called to order or who has insulted, provoked or threatened one or more of his or her colleagues.

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[It] automatically entails a reduction of the deputy’s salary by 25 per cent for one month. In the French Senate, a call to order with an entry in the record is applicable to any Senator who has already been called to order at the same sitting. It does not, however, have any impact on salary.

In some countries (Greece, Luxembourg, Slovenia, United States of America), 264 members who have been warned or called to order once may be (temporarily) deprived of the right to the floor if they persist in disobeying the rules. In the House of Representatives of the United States of America, a member who uses improper language is not excluded from the sitting — since that would mean denying representation to certain voters — but may be deprived of the right to take the floor for the rest of the day. In Luxembourg, members who have been called to order twice during the same sitting automatically lose the right to take the floor if it has already been accorded and are deprived of the right to take the floor for the remainder of the sitting.265

In most assemblies, the presiding officer may have any slanderous, indecent, unworthy or improper remarks or, in general, any “unparliamentary language” deleted from the record (Belgium, Cyprus, India and the United States).266

In countries influenced by French tradition, a simple censure is generally ranked third on the scale of disciplinary sanctions. In the French National Assembly, it can be imposed on any deputy who, after being called to order with an entry in the record, fails to obey the President’s ruling or causes a disturbance in the Assembly.


[263 Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.114.]

264 Id.

265 Id.

266 Id.

It automatically entails a reduction of the deputy's salary by 25 per cent for one month. In the French Senate, a call to order with an entry in the record is applicable to any Senator who has already been called to order at the same sitting. It does not, however, have any impact on salary.

In some countries (Greece, Luxembourg, Slovenia, United States of America.), members who have been warned or called to order once may be (temporarily) deprived of the right to the floor if they persist in disobeying the rules. In the House of Representatives of the United States of America, a member who uses improper language is not excluded from the sitting — since that would mean denying representation to certain voters — but may be deprived of the right to take the floor for the rest of the day. In Luxembourg, members who have been called to order twice during the same sitting automatically lose the right to take the floor if it has already been accorded and are deprived of the right to take the floor for the remainder of the sitting.

In most assemblies, the presiding officer may have any slanderous, indecent, unworthy or improper remarks or. in general, any "unparliamentary language" deleted from the record (Belgium, Cyprus, India, United States of America).

In countries influenced by French tradition, a simple censure is generally ranked third on the scale of disciplinary sanctions. In the French National Assembly, it can be imposed on any deputy who, after being called to order with an entry in the record, fails to obey the President's ruling or causes a disturbance in the Assembly.

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[22.] Wy/Fragment 086 01 - Diskussion
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[As this is a more serious penalty, it is the Assembly that takes the] decision by a standing vote and without a debate, on the President’s proposal. The Deputy concerned is entitled to a hearing or to have a colleague speak on his or her behalf.

There is an identical procedure in the French Senate, but the penalty is applicable, in addition to the two cases mentioned above, to Senators who insult, provoke or threaten their colleagues or use their offices for purposes other than the exercise of their mandate. In both chambers, a simple censure entails deduction of part of a member’s salary for a month (one-half in the National Assembly and one-third plus the entire duty allowance in the Senate).267 The word “reprimand” (blame in French) is sometimes used instead of “censure”. In Luxembourg, the President issues a reprimand that is entered in the record to any deputy who, having been called to order and denied the floor, fails to obey the President’s ruling or causes a disturbance in the assembly. This type of “censure” is commonly found in countries based on the French model, but it also exists elsewhere under a variety of names. (e.g. ”censure” and “reprimand” in the United States of America).268

In many countries influenced by French tradition, censure with temporary expulsion is the penalty of last resort. In France, it is applicable to deputies or senators who ignore or have twice been subject to a simple censure, who call for violence at a public sitting, insult the assembly or its President, or insult, provoke [or threaten the President of the Republic, the Prime Minister, the members of the Government or the assemblies provided for in the Constitution.]


267 According to Duhamcl [sic], O. and Meny, Y. Dictionnaire constitutionnel, Paris, P.U.F., 1992, p. 31J), the simple censure has been applied only once under the Fifth Republic: on 2 February 1984 in the National Assembly against Jacques Toubon (RPR), Alain Madelin (UDF), and Francois d'Aubert (UDF) during the discussion of the bill on plurality of media enterprises (J.O. De'bats AN, t and 2 February 1984, pp. 442-450 and 475-481). Quoted Marc Van der Hulst, The Parliamentary Mandate,Geneva: Inter-Parliamentary Union, 2000.

268 Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.114.

As this is a more serious penalty, it is the Assembly that takes the decision by a standing vote and without a debate, on the President's proposal. The Deputy concerned is entitled to a hearing or to have a colleague speak on his or her behalf. There is an identical procedure in the French Senate, but the penalty is applicable, in addition to the two cases mentioned above, to Senators who insult, provoke or threaten their colleagues or use their offices for purposes other than the exercise of their mandate. In both chambers, a simple censure entails deduction of part of a member's salary for a month (one-half in the National Assembly and one-third plus the entire duty allowance in the Senate).157 The word "reprimand" (blame in French) is sometimes used instead of "censure". In Luxembourg, the President issues a reprimand that is entered in the record to any deputy who, having been called to order and denied the floor, fails to obey the President’s ruling or causes a disturbance in the assembly. This type of "censure" is commonly found in countries based on the French model, but it also exists elsewhere under a variety of names (e.g. "censure" and "reprimand" in the United States of America).

In many countries influenced by French tradition, censure with temporary expulsion is the penalty of last resort. In France, it is applicable to deputies or senators who ignore or have twice been subject to a simple censure, who call for violence at a public sitting, insult the assembly or its President, or insult, provoke or threaten the President of the Republic, the Prime Minister, the members of the Government or the assemblies provided for in the Constitution.


157 According to Duhamel, O. and Meny, Y. / op. cit, p. 31 J), the simple censure has been applied only once under the Fifth Republic: on 2 February 1984 in the National Assembly against Jacques Toubon (RPR). Alain Madelin (UDF), and Francois d'Aubert (UDF) during the discussion of the bill on plurality of media enterprises (J.O. De'bats AN, t and 2 February 1984. pp. 442-450 and 475-481).

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[23.] Wy/Fragment 087 01 - Diskussion
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[In France, it is applicable to deputies or senators who ignore or have twice been subject to a simple censure, who call for violence at a public sitting, insult the assembly or its President, or insult, provoke] or threaten the President of the Republic, the Prime Minister, the members of the Government or the assemblies provided for in the Constitution. The Senate’s Rules of Procedure also target recidivist senators who have already subjected to a simple censure for having used their office for purposes other than the exercise of their mandates.269

This type of censure entails a ban on participation in the assembly’s proceedings for 15 days from the date on which the measure was taken. This period may be extended to 30 days if the parliamentarian refuses to obey the President’s ruling. It entails deduction of part of the Senator’s salary for two months. Censure with temporary expulsion is decided by the National Assembly or the Senate according to the same procedure as simple censure.270 In the French National Assembly, this penalty is also applicable to deputies who assault a colleague, subject to a decision by the Bureau on the proposal of the President. The Bureau is also convened by the President when a deputy attempts to obstruct the freedom of the deliberations or of voting in the Assembly and, having attacked a colleague, refuses to obey the President’s call to order.271

8.1.2 A Typically British Sanction: “Naming”


269 See, Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.115.

270 Duhamel, O. and Meny, Y., Dictionnaire constitutionnel, Paris, P.U.F., 1992, p.311, nole [sic] that the last instance of censure with temporary expulsion in France took place on 3 November 1950 in the National Assembly.

271 Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.115.

In France, it is applicable to deputies or senators who ignore or have twice been subject to a simple censure, who call for violence at a public sitting, insult the assembly or its President, or insult, provoke or threaten the President of the Republic, the Prime Minister, the members of the Government or the assemblies provided for in the Constitution. The Senate's Rules of Procedure also target recidivist senators who have already subjected to a simple censure for having used their office for purposes other than the exercise of their mandates. This type of censure entails a ban on participation in the assembly's proceedings for 15 days from the date on which the measure

[Seite 116]

was taken. This period may be extended to 30 days if the parliamentarian refuses to obey the President's ruling. It entails deduction of part of the Senator's salary for two months. Censure with temporary expulsion is decided by the National Assembly or the Senate according to the same procedure as simple censure158. In the French National Assembly, this penalty is also applicable to deputies who assault a colleague, subject to a decision by the Bureau on the proposal of the President. The Bureau is also convened by the President when a deputy attempts to obstruct the freedom of the deliberations or of voting in the Assembly and, having attacked a colleague, refuses to obey the President's call to order.

(b) A typically British sanction: "naming "


158 Duhamel, O . and Meny, Y. {}op. cit., p. 311) nole [sic] that the last instance of censure with temporary expulsion in France took place on 3 November 1950 in the National Assembly. ]

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Man beachte auch den identischen Fehler "nole" in der Fußnote 270 bzw. 158.

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[24.] Wy/Fragment 088 01 - Diskussion
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In most countries with a British parliamentary tradition (Australia, Canada, Kenya, United States of America),272 the most severe penalty that a presiding office can impose on members is usually that of “naming” them.

In Canada, a member can be named for failing to respect the Speaker’s authority by, for example, refusing to withdraw unparliamentary comments, to cut short an irrelevant or repetitive statement or to cease interrupting a member who has the floor. Persistent improper conduct after being asked by the Speaker to desist is another way of defying the Speaker’s authority and may also entail the penalty of naming. Before taking that step, the Speaker usually warns the offender several times of the penalty that may be imposed for failure to obey. If the member apologises and the Speaker is broadly satisfied, the incident is usually deemed to be closed and no measure is taken. If, on the other hand, the member is named, the Speaker has two options: he or she may either order the offender to withdraw forthwith from the House for the remainder of the sitting or simply wait until the House takes any other disciplinary measure it deems appropriate. The first option was adopted in February 1986 and has always been used since to discipline a member who has been named. If the Speaker chooses the second option, another member — generally the Leader of the Government in the House — immediately moves the suspension of the member concerned. The motion may not be debated or amended and the Speaker immediately puts it to the vote. If the motion is adopted, the member must leave the House.273

If the Speaker names a member in Australia, a motion for (temporary) suspension is put to the vote.


272 See, Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000.

273 Id.

In most countries with a British parliamentary tradition (Australia, Canada, Kenya, United States of America), the most severe penalty that a presiding office can impose on members is usually that of «naming» them.

In Canada, a member can be named for failing to respect the Speaker's authority by, for example, refusing to withdraw unparliamentary comments, to cut short an irrelevant or repetitive statement or to cease interrupting a member who has the floor. Persistent improper conduct after being asked by the Speaker to desist is another way of defying the Speaker's authority and may also entail the penalty of naming. Before taking that step, the Speaker usually warns the offender several times of the penalty that may be imposed for failure to obey. If the member apologises and the Speaker is broadly satisfied, the incident is usually deemed to be closed and no measure is taken. If. on the other hand, the member is named, the Speaker has two options: he or she may either order the offender to withdraw forthwith from the House for the remainder of the sitting or simply wait until the House takes any other disciplinary measure it deems appropriate. The first option was adopted in February 1986 and has always been used since to discipline a member who has been named. If the Speaker chooses the second option, another member — generally the Leader of the Government in the House — immediately moves the suspension of the member concerned. The motion may not be debated or amended and the Speaker immediately puts it to the vote. If the motion is adopted, the member must leave the House.

[Seite 117]

If the Speaker names a member in Australia, a motion for (temporary) suspension is put to the vote.

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[25.] Wy/Fragment 089 01 - Diskussion
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[If it is adopted, the member is expelled, on the first] occasion for 24 hours, on the second (within the same year) for three consecutive sittings, and on the third (or any other occasion within the same year) for seven consecutive sittings.274 It should be noted that this amounts to a fully fledged suspension of the member’s mandate rather than mere expulsion from the precincts of Parliament.

8.1.3 Subsidiary Sanctions

There are three further categories of sanction, which are usually subsidiary: pecuniary sanctions, compulsory presentation of an apology and loss of seniority. pecuniary sanctions may be of two kinds: in some assemblies, a fine is a penalty in its own right (Gabon, United States of America); in others, certain disciplinary sanctions automatically entail a reduction in the parliamentarian’s salary for a specified period (see above: censure in France).

In a number of countries, the presiding officer may order the member to apologise. This type of sanction is common in Asian countries (Japan, Lao Democratic People’s Republic, Republic of Korea) 275 but also exists in other countries (Slovakia, United States of America).276 In many countries, members present an apology not because they are obliged to do so for disciplinary reasons but to avoid disciplinary sanctions (Romania, Slovakia, United States of America).277


[272 See, Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000.]

274 Id.

275 Id.

276 Id..

277 Id.

If it is adopted, the member is expelled, on the first occasion for 24 hours, on the second (within the same year) for three consecutive sittings, and on the third (or any other occasion within the same year) for seven consecutive sittings. It should be noted that this amounts to a fully fledged suspension of the member's mandate rather

than mere expulsion from the precincts of Parliament.

(c) Subsidiary sanctions

There are three further categories of sanction, which are usually subsidiary: pecuniary sanctions, compulsory presentation of an apology and loss of seniority.

Pecuniary sanctions may be of two kinds: in some assemblies, a fine is a penalty in its own right (Gabon, United States of America); in others, certain disciplinary sanctions automatically entail a reduction in the parliamentarian's salary for a specified period (see above: censure in France).

In a number of countries, the presiding officer may order the member to apologise. This type of sanction is common in Asian countries (Japan, Lao Democratic People's Republic, Republic of Korea) but also exists in other countries (Slovakia, United States of America). In many countries, members present an apology not because they are obliged to do so for disciplinary reasons but to avoid disciplinary sanctions (Romania, Slovakia, United States of America).

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[26.] Wy/Fragment 090 01 - Diskussion
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In the United States of America, the House of Representatives imposes a somewhat original penalty, namely loss of seniority.278 Although this penalty is more commonly imposed for failure to respect “ethical” rules than for purely disciplinary purposes, it should not be viewed as a purely symbolic sanction, because seniority is an important criterion for obtaining certain privileges (a large office) and for appointment to certain offices (e.g. committee chairperson).

8.2 Who Imposes Sanctions

As noted above, the most lenient disciplinary sanctions are usually imposed by the person chairing a particular sitting. They are applicable to minor breaches of the rules. As presiding officers are responsible for the conduct of the proceedings and for maintaining order and decorum, it stands to reason that they should issue a ruling in such cases. In France, for example, the President has sole authority to call a member to order, with or without an entry in the record, while more severe penalties (simple censure and censure with temporary expulsion) are imposed by the assembly, on the President’s proposal.279 In Luxembourg, the decision to impose disciplinary sanctions is taken by the presiding officer, except for reprimands with temporary expulsion, which require a vote by show of hands, with an absolute majority, in the Chamber. It should be noted, however, that when a member assaults a colleague, the Labour Committee is responsible for deciding, where appropriate, to issue a reprimand with temporary expulsion. While responsibility for decisions in less serious cases usually lies with the presiding officer, provision may be made for appeal in such cases.280


[272 See, Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000.]

278 Id.

279 Id.

280 Id.

In the United States of America, the House of Representatives imposes a somewhat original penalty, namely loss of seniority. Although this penalty is more commonly imposed for failure to respect "ethical" rules than for purely disciplinary purposes, it should not be viewed as a purely symbolic sanction, because seniority is an important criterion for obtaining certain privileges (a large office) and for appointment to certain offices (e.g. committee chairperson).

3. Who imposes sanctions?

As noted above, the most lenient disciplinary sanctions are usually imposed by the person chairing a particular sitting. They are applicable to minor breaches of the rules. As presiding officers are responsible for the conduct of the proceedings and for maintaining order and decorum, it stands to reason that they should issue a ruling in such cases. In France, for example, the President has sole authority to call a member to order, with or without an

[Seite 118]

entry in the record, while more severe penalties (simple censure and censure with temporary expulsion) are imposed by the assembly, on the President's proposal. In Luxembourg, the decision to impose disciplinary sanctions is taken by the presiding officer, except for reprimands with temporary expulsion, which require a vote by show of hands, with an absolute majority, in the Chamber. It should be noted, however, that when a member assaults a colleague, the Labour Committee is responsible for deciding, where appropriate, to issue a reprimand with temporary expulsion.

While responsibility for decisions in less serious cases usually lies with the presiding officer, provision may be made for appeal in such cases.

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In the Belgian Senate, for example, a penalised member may appeal to the Bureau of the Senate.281 In India, the Speaker of the Lok Sabha may name a member, but any subsequent temporary expulsion requires the consent of the assembly, which may terminate the procedure at any time.282 In the United States of America, the Speaker may penalise a member who has made offensive remarks and refuses to withdraw them, but the member may appeal and the assembly takes the final decision. Another interesting feature of sanction procedures in the United States is the fact that authority to initiate sanctions is not vested in the Speaker alone. Any member can set in motion a disciplinary procedure against a colleague and even call to order a member whose conduct is unseemly.283 This right exists in some other countries too. In Romania, for example, serious or repeated violations liable to entail suspension are submitted to the Legal Committee.284 The referring source may be a parliamentary group or an individual senator or deputy. The Legal Committee reports to the Bureau, which rules on the matter. The situation is similar in Slovakia, where the Mandates and Immunities Committee may take up a case itself or have the matter referred to it by an individual member who feels insulted by a colleague’s remarks.285

In very rare cases, all disciplinary sanctions are taken by the assembly on the proposal of the President (e.g. in Chad). As a rule, however, only severe sanctions (such as temporary expulsion) are imposed by the assembly and a special majority [is sometimes required.]


[272 See, Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000.]

281 Id.

282 Id.

283 Id.

284 Id.

285 Id.

In the Belgian Senate, for example, a penalised member may appeal to the Bureau of the Senate. In India, the Speaker of the Lok Sabha may name a member, but any subsequent temporary expulsion requires the consent of the assembly, which may terminate the procedure at any time. In the United States of America, the Speaker may penalise a member who has made offensive remarks and refuses to withdraw them, but the member may appeal and the assembly takes the final decision.

Another interesting feature of sanction procedures in the United States is the fact that authority to initiate sanctions is not vested in the Speaker alone. Any member can set in motion a disciplinary procedure against a colleague and even call to order a member whose conduct is unseemly This right exists in some other countries too. In Romania, for example, serious or repeated violations liable to entail suspension are submitted to the Legal Committee. The referring source may be a parliamentary group or an individual senator or deputy. The Legal Committee reports to the Bureau, which rules on the matter. The situation is similar in Slovakia, where the Mandates and Immunities Committee may take up a case itself or have the matter referred to it by an individual member who feels insulted by a colleague's remarks.

In very rare cases, all disciplinary sanctions are taken by the assembly on the proposal of the President (e.g. in Chad). As a rule, however, only severe sanctions (such as temporary expulsion) are imposed by the assembly and a special majority is sometimes required.

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[28.] Wy/Fragment 092 01 - Diskussion
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In the Philippines, suspension of a mandate may not exceed 60 days and must be ordered by a two-thirds majority of members.

Lastly, a small group of countries adopt an intermediate approach, all disciplinary measures being taken either by the Bureau or equivalent body (e.g. the Lao Democratic People’s Republic) or by a special committee. In the Israeli Knesset, for example, the Speaker may call a member to order but the decision to impose more severe sanctions (such as temporary expulsion) must be taken by the Ethics Committee. In the Republic of Korea, the Speaker refers cases to the Special Committee on Ethics, which reports to the plenary and the latter takes the final decision. In assemblies where such ethics committees exist, they usually also have jurisdiction in cases of breaches of ethical precepts or codes of conduct.286

8.3 Contempt of Parliament

8.3.1 A Typical British Institution287

Protection against “insults” to or “contempt” of parliament is a privilege enjoyed both by assemblies and individual members in some countries. The countries concerned may be divided into two categories. The notion of contempt of parliament is alien to most countries. Clearly, this does not mean that insults to parliament are allowed but simply that no legal distinction is made between insults to parliament and those directed against some other public authority. Parliament is not protected in its own right but as part of the machinery of government whose dignity must be preserved in all circumstances. While the terms “contempt of parliament” or “insult to parliament” are occasionally [employed in some countries belonging to this group, especially those influenced by French tradition, their scope is different from that prevailing in countries with a British parliamentary tradition.]


[272 See, Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000.]

286 Id.

287 See, Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, pp.129-134.

In the Philippines, suspension of a mandate may not exceed 60 days and must be ordered by a two-thirds majority of members.lsy [sic]

[Seite 119]

Lastly, a small group of countries adopt an intermediate approach, all disciplinary measures being taken either by the Bureau or equivalent body (e.g. the Lao Democratic People's Republic) or by a special committee. In the Israeli Knesset, for example, the Speaker may call a member to order but the decision to impose more severe sanctions (such as temporary expulsion) must be taken by the Ethics Committee. In the Republic of Korea, the Speaker refers cases to the Special Committee on Ethics, which reports to the plenary and the latter takes the final decision. In assemblies where such ethics committees exist, they usually also have jurisdiction in cases of breaches of ethical precepts or codes of conduct (see Chapter IV).

[Seite 129]

V. Contempt of parliament

1. A quintessentially British institution

Protection against "insults" to or "contempt" of parliament is a privilege enjoyed both by assemblies and individual members in some countries. The countries concerned may be divided into two categories. The notion of contempt of parliament is alien to most countries. Clearly, this does not mean that insults to parliament are allowed but simply that no legal distinction is made between insults to parliament and those directed against some other public authority. Parliament is not protected in its own right but as part of the machinery of government whose dignity must be preserved in all circumstances. While the terms

[Seite 130]

"contempt of parliament" or "insult to parliament" are occasionally employed in some countries belonging to this group, especially those influenced by French tradition, their scope is different from that prevailing in countries with a British parliamentary tradition.

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[While the terms “contempt of parliament” or “insult to parliament” are occasionally] employed in some countries belonging to this group, especially those influenced by French tradition, their scope is different from that prevailing in countries with a British parliamentary tradition. The Rules of Procedure of the French Senate stipulate that a Senator who insults the Senate or its President is liable to censure with temporary expulsion from the Senate building. In such cases, the French Senate is not exercising criminal but disciplinary jurisdiction. Slander of the “constituent bodies” (including the Parliament) is punishable by a term of imprisonment of one year and a fine of FF 300,000 under the Act of 29 July 1881 concerning freedom of the press.288

The second group of countries, on which we propose to focus in this chapter, consists for the most part of countries with a parliamentary tradition based on the British model (Canada, Ireland, United Kingdom, United States of America).289 In these countries, parliament has laid the foundations for its own protection: it enjoys criminal jurisdiction and may impose penalties on anybody who breaches its privileges.

8.3.2 Preventing from Interfering by the Executive or the General Public

The scope of the concept of contempt of parliament is somewhat unclear, inter alia because Commonwealth parliaments have always jealously guarded their right to determine whether or not their privileges have been breached. It is not surprising therefore that the Rules of Procedure of these parliaments rarely contain a definition of the notion of contempt of parliament.290


[287 See, Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, pp.129-134.]

288 Id.

289 Id.

290 The Rules of Procedure of the Indian Council of Slates (the Rajya Sabha) constitute an exception to this rule by defining contempt of the House in annex III as “any act or omission which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency directly or indirectly to produce such results”.

While the terms

[Seite 130]

"contempt of parliament" or "insult to parliament" are occasionally employed in some countries belonging to this group, especially those influenced by French tradition, their scope is different from that prevailing in countries with a British parliamentary tradition. The Rules of Procedure of the French Senate stipulate that a Senator who insults the Senate or its President is liable to censure with temporary expulsion from the Senate building. In such cases, the French Senate is not exercising criminal but disciplinary jurisdiction. Slander of the "constituent bodies" (including the Parliament) is punishable by a term of imprisonment of one year and a fine of FF 300,000 under the Act of 29 July 1881 concerning freedom of the press.

The second group of countries, on which we propose to focus in this chapter, consists for the most part of countries with a parliamentary tradition based on the British model (Canada, Ireland, United Kingdom, United States of America). In these countries, parliament has laid the foundations for its own protection: it enjoys criminal jurisdiction and may impose penalties on anybody who breaches its privileges.

2. Protection against interference by the Executive or the general public

The scope of the concept of contempt of parliament is somewhat unclear, inter alia because Commonwealth parliaments have always jealously guarded their right to determine whether or not their privileges have been breached. It is not surprising therefore that the Rules of Procedure of these parliaments rarely contain a definition of the notion of contempt of parliament.173


173 The Rules of Procedure of the Indian Council of Slates (the Rajya Sabha) constitute an exception to this rule by defining contempt of the House in annex III as "any act or omission which obstructs or impedes any member or officer of such House in the discharge of his duty, or which has a tendency directly or indirectly to produce such results".

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(Hindemith), SleepyHollow02

[30.] Wy/Fragment 094 01 - Diskussion
Zuletzt bearbeitet: 2013-09-12 07:08:15 Graf Isolan
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[As a rule, contempt of] parliament denotes what may be termed “breaches of the privileges of parliament” or “insults to parliament”. The following examples illustrate what this means in practice:

- Attacking, obstructing, abusing or insulting members or parliamentary officials in the performance of their duties;

- Bribing a parliamentarian;

- Refusing to obey parliament or its committees;

- Defaming or slandering parliament and its members orally or in writing;

- Publishing confidential information;

- Trying to influence parliamentarians’ votes, opinions, assessments or action by fraud, threats or intimidation;

- Perjury before parliament or its committees;

- Use of force or threatening to use force to suspend a sitting, etc.291

It may be gathered from this list, which is not exhaustive, that the aim is to protect the proceedings of the assembly against any kind of interference, primarily by the Executive or the general public. When parliament decides to punish an offender, it usually does so in the form of a reprimand delivered by the presiding officer of the chamber concerned. Offenders who are not members of parliament are summoned to appear before the house.


291 See, Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.130.

As a rule, contempt of parliament denotes what may be termed "breaches of the privileges of parliament" or "insults to parliament". The following examples illustrate what this means in practice:

- Attacking, obstructing, abusing or insulting members or parliamentary officials in the performance of their duties;

- Bribing a parliamentarian;

- Refusing to obey parliament or its committees (attendance, production of papers, books, documents or reports);

[Seite 131]

[...]

- Defaming or slandering parliament and its members orally or in writing;1TM[sic]

- Publishing confidential information;

- Trying to influence parliamentarians' votes, opinions, assessments or action by fraud, threats or intimidation;

- Perjury before parliament or its committees;

- Use of force or threatening to use force to suspend a sitting, etc.

It may be gathered from this list, which is not exhaustive, that the aim is to protect the proceedings of the assembly against any kind of interference, primarily by the Executive or the general public. When parliament decides to punish an offender, it usually does so in the form of a reprimand delivered by the presiding officer of the chamber concerned. Offenders who are not members of parliament are summoned to appear before the house.

Anmerkungen

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(Hindemith), SleepyHollow02

[31.] Wy/Fragment 095 01 - Diskussion
Zuletzt bearbeitet: 2013-09-13 06:54:58 WiseWoman
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[The right to impose sanctions includes] the right to sentence offenders to limited terms of imprisonment. Some parliaments are empowered to impose fines.

In the United Kingdom and most other Commonwealth countries, the courts recognise the exclusive jurisdiction of parliament in matters of privilege, but conflicts have arisen between parliament and the courts in cases in which the limits of privilege are unclear.292

In the United States of America, the punitive authority of Congress is more limited than in the parliaments of the United Kingdom and some Commonwealth countries. The Constitution empowers the Congress toents or reports; [sic!] proceed against persons who breach the clearly established privileges of the two houses, for example a person who deliberately attempts to prevent a member from discharging his or her legislative duties. Congressional committees, all of which now have authority to subpoena, may bright [sic] an accusation against witnesses who refuse to cooperate, with the proviso that self-incrimination by such persons is inadmissible. Congress is not, however, vested with general punitive authority and may not determine whether a particular form of behaviour constitutes contempt of Congress.293

8.3.3 A Weapon of Being [sic] Used Against Members of Parliament

While the main purpose of the notion of “contempt of parliament” in countries where it exists is to protect the assembly and its members against acts by the Executive or the general public, members themselves may also commit the offence of contempt of parliament.


292 If, for example, parliamentary privilege is invoked as a defence in a case before the courts, it is the court which decides whether the argument is acceptable or not", Laundy, P., Parliaments in the Modern World, Aldershot, Dartmouth, 1989, pp.121-2

293 Id., p.122.

The right to impose sanctions includes the right to sentence offenders to limited terms of imprisonment.177 Some parliaments are empowered to impose fines.

In the United Kingdom and most other Commonwealth countries, the courts recognise the exclusive jurisdiction of parliament in matters of privilege, but conflicts have arisen between parliament and the courts in cases in which the limits of privilege are unclear.178

In the United States of America, the punitive authority of Congress is more limited than in the parliaments of the United Kingdom and some Commonwealth countries. The Constitution empowers the Congress to

[Seite 132]

proceed against persons who breach the clearly established privileges of the two houses, for example a person who deliberately attempts to prevent a member from discharging his or her legislative duties. Congressional committees, all of which now have authority to subpoena, may proceed against witnesses who refuse to cooperate, with the proviso that self-incrimination by such persons is inadmissible. Congress is not, however, vested with general punitive authority and may not determine whether a particular form of behaviour constitutes contempt of Congress.179

3. A weapon that can also be used against members of parliament

While the main purpose of the notion of "contempt of parliament" in countries where it exists is to protect the assembly and its members against acts by the Executive or the general public, members themselves may also commit the offence of contempt of parliament.



177 "Although it is very rarely invoked these days, it cannot be described as obsolete. As recently as 1955 the Australian House of Represenlatives sentenced two journalisls to three months' imprisonment for publishing scurrilous allegations against certain members of Parliament" (Laundy, P., op. cit., p. 121).

178 "If, for example, parliamentary privilege is invoked as a defence in a case before the courts, it is the court which decides whether the argument is acceptable or not" (Laundy, P., op. cit., pp. 121-122).

,7"/tod., [sic] p. 121.

Anmerkungen

Ein Quellenverweis für die wörtliche Übernahme fehlt hier, eine Kennzeichnung derselben auch.

Man beachte, dass sich für den anscheinend sinnlosen Tippfehler im dritten Abschnitt "toents or reports;" eine einfache Erklärung finden lässt. Auf der Vorseite wurde "(attendance, production of papers, books, documents or reports);" aus dem Quelltext gekürzt (siehe Wy/Fragment_094_01). Offenbar wurde das Ende dieses Textabschnitts "ents or reports" versehentlich hierher kopiert und mit dem korrekten "to" verschmolzen. Insgesamt ein Hinweis auf eine Übernahme im "Copy-Paste" Stil.

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(Hindemith), SleepyHollow02

[32.] Wy/Fragment 096 01 - Diskussion
Zuletzt bearbeitet: 2013-09-13 07:00:23 WiseWoman
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A member who is guilty of contempt of parliament, just like any other offender, is liable to a reprimand, a term of imprisonment or a fine. Furthermore, in many Commonwealth parliaments the assembly may impose two other penalties: suspension of the member’s mandate or expulsion.

In Western countries, parliaments display considerable reluctance to exercise this right. For example, the last occasion on which the British House of Commons expelled one of its members who had been found guilty of a gross breach of privilege was in 1947.294 m In Australia, the 1987 Parliamentary Privileges Act not only abolished the authority of the two houses of parliament to punish individuals for defamation of parliamentarians, but also withdrew their authority to expel their own members.295

In other Commonwealth countries, however, cases of suspension or even expulsion for contempt of parliament occur relatively frequently. In Zambia, for example, there have been four cases over the past thirty years: In 1968, a member was suspended for the remainder of the term for racist allegations against colleagues; 296 in 1970, a member was expelled for offensive remarks that discredited the assembly;297 In 1993, a Member of Parliament and the Leader of the Opposition were accused of unjustly impugning the impartiality of the [Speaker (the member was suspended);298]


[292 If, for example, parliamentary privilege is invoked as a defence in a case before the courts, it is the court which decides whether the argument is acceptable or not", Laundy, P., Parliaments in the Modern World, Aldershot, Dartmouth, 1989, pp.121-2]

293 Id., p.122.

294 UK Parliament, Reports of the Joint Committee on Parliamentary Privilege, http://www.parliament.thestationery-office.co.uk/pa/jt199899/ jtselect/jtpriv/43/4302.htm.

295 See, Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.132.

296 Id.

297 Id.

298 Id.

A member who is guilty of contempt of parliament, just like any other offender, is liable to a -reprimand, a term of imprisonment or a fine. Furthermore, in many Commonwealth parliaments the assembly may impose two other penalties: suspension of the member's mandate or expulsion.

In Western countries, parliaments display considerable reluctance to exercise this right. For example, the last occasion on which the British House of Commons expelled one of its members who had been found guilty of a gross breach of privilege was in 1947.m In Australia, the 1987 Parliamentary Privileges Act not only abolished the authority of the two houses of parliament to punish individuals for defamation of parliamentarians, but also withdrew their authority to expel their own members.

In other Commonwealth countries, however, cases of suspension or even expulsion for contempt of parliament occur relatively frequently. In Zambia, for example, there have been four cases over the past thirty years: in 1968, a Member was suspended for the remainder of the term for racist allegations against colleagues; in 1970, a Member was expelled for offensive remarks that discredited the assembly; in 1993, a Member of Parliament and the Leader of the Opposition were accused of unjustly impugning the impartiality of the Speaker (the member was suspended);

Anmerkungen

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(Hindemith), SleepyHollow02

[33.] Wy/Fragment 097 01 - Diskussion
Zuletzt bearbeitet: 2013-09-11 20:38:38 Graf Isolan
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Lastly, in 1996 a member was found guilty of serious contempt of parliament and expelled for openly dissociating himself from action taken by the assembly. 299 It is therefore a manifestly dangerous weapon that should be used with the greatest circumspection.

[295 See, Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.132.]

299 Id.

[...] lastly, in 1996 a Member was found guilty of serious contempt of parliament and expelled for openly dissociating himself from action taken by the assembly. It is therefore a manifestly dangerous weapon that should be used with the greatest circumspection.
Anmerkungen

Die vorhandene Quellenangabe macht nicht deutlich, dass hier wörtlich übernommen wurde. Hier endet das Kapitel 8, das in seiner Gesamtheit aus der hier dokumentierten Quelle:Wy/Van_der_Hulst_2000 stammt.

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