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114 gesichtete, geschützte Fragmente: Plagiat

[1.] Wy/Fragment 004 10 - Diskussion
Bearbeitet: 25. June 2014, 22:06 Singulus
Erstellt: 10. September 2013, 19:23 (Graf Isolan)
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Quelle: Griffith 2007
Seite(n): 4, Zeilen: 19-22
In most instances a clear connection exists between these individual immunities and collective powers.8 For example, the right to freedom speech in Parliament is the basis of the power of the House to regulate its own proceedings, as well as to control the publication of its debates and proceedings.9

8 H.Evans ed, Odgers’Australian Senate Practice, 11th ed., Department of the Senate 2004, pp.30-1.

9 E.Campbell, Parliamentary Privilege in Australia, Melbourne: Melbourne University Press, 1966, pp.74-5.

In most instances a clear connection exists between these individual immunities and collective powers.11 For example, the right to freedom speech in Parliament is the basis of the power of the House to regulate its own proceedings, as well as to control the publication of its debates and proceedings.12

11 H Evans ed, Odgers’ Australian Senate Practice, 11th edition, Department of the Senate 2004, pp 30-1. [...]

12 E Campbell, Parliamentary Privilege in Australia, n 5, pp 74-5.

Anmerkungen

Kein Hinweis auf eine Übernahme.

Man achte auf die in den Literaturverweisen an dieser Stelle benutzte Auslassung der Zehnerstellen, die exakt der Vorgehensweise der Vorlage entspricht.

Sichter
(Graf Isolan), Hindemith

[2.] Wy/Fragment 070 01 - Diskussion
Bearbeitet: 12. December 2013, 23:44 Schumann
Erstellt: 12. September 2013, 08:16 (Singulus)
BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy

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[In most countries, parliamentarians lose] their mandate once they are sentenced to a specific term of imprisonment, and the question of attendance therefore no longer arises.224

224 See, Marc Van der Hulst,The Parliamentary Mandate,Geneva: Inter-Parliamentary Union, 2000, p.93.

In most countries, parliamentarians lose their mandate once they are sentenced to a specific term of imprisonment, and the question of attendance therefore no longer arises.
Anmerkungen

Art und Umfang der Übernahme bleiben ungekennzeichnet.

Sichter
(Singulus), WiseWoman

[3.] Wy/Fragment 059 18 - Diskussion
Bearbeitet: 24. September 2013, 16:00 Graf Isolan
Erstellt: 11. September 2013, 22:18 (Singulus)
BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy

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Quelle: UNDP_Initiative_2006
Seite(n): 14, Zeilen: 37-42
6.2.2 Time Frame

The time frame during which freedom from arrest is valid is usually the same as in the case of freedom of speech with one crucial exception. Contrary to the privilege of freedom of speech, freedom from arrest is only afforded for the duration of the mandate. Once it has expired, members of parliament may [consequently be prosecuted for offences in respect of which parliament had not lifted immunity.]

(b) Time frame

The time frame during which inviolability is valid is usually the same as in the case of freedom of speech (see above 4.2.) with one crucial exception. Contrary to the privilege of freedom of speech, inviolability is only afforded for the duration of the mandate. Once it has expired, members of parliament may consequently be prosecuted for offences in respect of which parliament had not lifted immunity.

Anmerkungen

Art und Umfang der Übernahme bleiben ungekennzeichnet.

Sichter
(Singulus) Schumann

[4.] Wy/Fragment 172 01 - Diskussion
Bearbeitet: 17. September 2013, 18:01 WiseWoman
Erstellt: 16. September 2013, 07:33 (Graf Isolan)
BauernOpfer, Brudney 1999, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, Wy

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Seite: 172, Zeilen: 1-13, 101-102
Quelle: Brudney 1999
Seite(n): 7-8, Zeilen: 7:6ff - 8:1-4
There are ample grounds to believe that entrusting congressional selfregulation directly to legislators, or to a process that includes significant participation by legislators, is unworkable. Given the realities of partisan politics, members inevitably will be tempted to depart from a neutral disciplinary approach. Further, regular member recourse to such disciplinary procedures would likely threaten even the modest comity among members that is needed to conduct the legislative process.521 Yet, to the extent that such factors incline members to curtail or impair the use of disciplinary authority, congressional employees understandably will feel chilled in the exercise of their putative rights. Indeed, employees’ diffident assertion of those rights prior to the CAA may well reflect fear of being ignored or retaliated against due to a lack of confidence in the effectiveness or independence of member-controlled enforcement practices.522

13.3.2.2 Key Aspects of the Enacted CAA


521 Robert S.Getz, Congressional Ethics: The Conflict of Interest Issue, Princeton, N.J.Van Nostrand, 1966,pp.84-113.

522 See, James J. Brudney, Congressional Accountability and Denial: Speech or Debate Clause and Conflict of Interest Challenges to Uuionzation of Congressional Employees, Harvard Journal on Legislation, Winter, 1999.

[Seite 7]

There are ample grounds to believe that entrusting congressional self-regulation directly to legislators, or to a process that includes significant participation by legislators, is unworkable. Given the realities of partisan politics, members inevitably will be tempted to depart from a neutral disciplinary approach. Further, regular member recourse to such disciplinary procedures would likely threaten even the modest comity among members that is needed to conduct the legislative process.27 Yet, to the extent that such factors incline members to curtail or impair the use of disciplinary authority, congressional employees understandably will feel chilled in the exercise of their putative rights."28 Indeed, employees' diffident assertion of those rights

[Seite 8]

prior to the CAA29 may well reflect fear of being ignored or retaliated against due to a lack of confidence in the effectiveness or independence of member-controlled enforcement practices.30

B. Key Aspects of the CAA as Enacted


27 Cf. ROBERT S. GETZ, CONGRESSIONAL ETHICS: THE CONFLICT OF INTEREST ISSUE 84-113 (1966) (discussing similar concerns regarding congressional self-regulation in ethical matters).

28 See, e.g., 1993 Joint Committee Hearings, supra note 24, at 125 (statement of Nancy Kingsbury, U.S. General Accounting Office) (reporting that House employees filed a relatively small number of complaints between 1989 and 1993, and that the Office of Fair Employment Practices Director attributed the small number to high employee turnover and employees' concerns about their employing office becoming aware of the complaint); REED & CAMERON, supra note 21, at 37-38 (reporting results of a survey commissioned in the early 1990s by the Joint Committee on Organization of Congress: up to 70% of Senate staff surveyed had reservations about contacting Senate Fair Employment Practices Office to make inquiry or file complaint).

29 See 1993 Joint Committee Hearings, supra note 24, at 124 (noting that seven House employees filed formal complaints regarding employment discrimination between 1989 and 1993); CUMULATIVE REPORT OF THE OFFICE OF SENATE FAIR EMPLOYMENT PRACTICES, JUNE 1, 1992 THROUGH SEPT. 30, 1994, at 14 (reporting that 28 employees filed formal complaints during the 28-month period). During the early 1990s, there were some 18,000 employees working for the House or Senate as personal staff, committee staff, leadership staff, or staff to Officers of the House or Senate. In addition, nearly 10,000 individuals were employed by Congress's support agencies, including the General Accounting Office, the Congressjonal Research Service, the Architect of the Capitol, and the Capitol Police. See NORMAN J. ORNSTEIN ET AL., VITAL STATISTICS ON CONGRESS, 1993-94, 126-27 (1994).

30 See 1994 House Committee Hearings, supra note 24, at 429 (statement of Harold H. Bruf); REED & CAMERON, supra note 21, at 37-38. See also Richard Morrin, Female Aides on Hill: Still Outsiders in Man's World, WASH. POST, Feb. 21, 1993, at Al (reporting that 80% of female congressional employees would be reluctant to file sexual harassment complaints against members of Congress due to perceived ineffectiveness of current procedures or fear of retaliation).

Anmerkungen

Art und Umfang der wörtlichen Übernahme bleiben ungekennzeichnet. Auf den detaillierten Fußnotenapparat der Vorlage "verzichtet" Wy allerdings.

Sichter
(Graf Isolan), SleepyHollow02

[5.] Wy/Fragment 167 01 - Diskussion
Bearbeitet: 16. September 2013, 12:14 WiseWoman
Erstellt: 14. September 2013, 18:17 (Graf Isolan)
Fragment, Gesichtet, Griffith 2007, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wy

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Untersuchte Arbeit:
Seite: 167, Zeilen: 1ff (komplett)
Quelle: Griffith 2007
Seite(n): 56-57, Zeilen: 56:27ff - 57:1-13
Lord Browne-Wilkinson made it clear that he had only dealt with this question in order to avoid confusion in the law of parliamentary privilege.511 As he said at the outset, ‘section 13 affects all the issues in this case’.512 In effect, since Hamilton had chosen to rely on s 13, the trial of the action could proceed, notwithstanding the infringement of parliamentary privilege that would result.

In its First Report of 1999, the Joint Committee on Parliamentary Privilege recommended that s 13 be repealed, arguing that it had “created indefensible anomalies of its own which should not be allowed to continue”. The cure s 13 which ought to achieve what was to rectify the situation where an individual MP (or a witness before a parliamentary committee) is precluded by parliamentary privilege from taking action to clear their name when it is alleged that what they have said in a parliamentary context is untrue. For the Joint Committee, the cure was worse than the disease:

A fundamental flaw is that it undermines the basis of privileges: Freedom of speech is the privilege of the House as a whole and not of the individual member in his own right, although an individual member can assert and rely on it. Application of the new provision could also be impracticable in complicated cases; for example, where two members, or a member and a non-member, are closely involved in the same action and one waives privilege and the other does not. Section 13 is also anomalous: it is available only in defamation proceedings. No similar waiver is available for any criminal action, or any other form of civil action.513


511 [2001] 1 AC 395, p.407.

512 [2001] 1 AC 395, p.398.

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

[Seite 56]

Lord Browne-Wilkinson made it clear that he had only dealt with this question in order to avoid confusion in the law of parliamentary privilege.203 As he said at the outset, ‘section 13 affects all the issues in this case’.204 In effect, since Hamilton had chosen to rely on s 13, the trial of the action could proceed, notwithstanding the infringement of parliamentary privilege that would result.

In its First Report of 1999, the Joint Committee on Parliamentary Privilege recommended that s 13 be repealed, arguing that it had ‘created indefensible anomalies of its own which

[Seite 57]

should not be allowed to continue’. The cure s 13 sought to achieve was to rectify the situation where an individual MP (or a witness before a parliamentary committee) is precluded by parliamentary privilege from taking action to clear their name when it is alleged that what they have said in a parliamentary context is untrue. For the Joint Committee, the cure was worse than the disease:

A fundamental flaw is that it undermines the basis of privilege: freedom of speech is the privilege of the House as a whole and not of the individual member in his own right, although an individual member can assert and rely on it. Application of the new provision could also be impracticable in complicated cases; for example, where two members, or a member and a non-member, are closely involved in the same action and one waives privilege and the other does not. Section 13 is also anomalous: it is available only in defamation proceedings. No similar waiver is available for any criminal action, or any other form of civil action.205


203 [2001] 1 AC 395 at 407.

204 [2001] 1 AC 395 at 398.

205 Joint Committee on Parliamentary Privilege, n 2, pp 24-25.

Anmerkungen

Identisch ohne Hinweis auf eine Übernahme. Für das Zitat, das den letzten Absatz ausmacht ("A fundamental ... action") gibt Wy zwar korrekt die (bei ihm: Internet-) Vorlage an, es findet sich aber genau in diesem Umfang und vor allem in demselben, wortwörtlichen Kontext schon in der Quelle Griffith. Wy/Fragment_167_14b zeigt aber auch, dass Griffith den Text evtl. auch aus einer anderen Quelle übernommen hat.

Sichter
(Graf Isolan) Agrippina1

[6.] Wy/Fragment 173 15 - Diskussion
Bearbeitet: 16. September 2013, 10:32 Graf Isolan
Erstellt: 16. September 2013, 07:44 (Graf Isolan)
BauernOpfer, Brudney 1999, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, Wy

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An important factor is the extent to which The Act shields members themselves from litigation even while making Congress accountable as an institution.525 Employee complaints may be brought only against the employing office, not the member individually.526 Accordingly, in a court or other formal proceeding the respondent employing office is likely to receive representation [from counsel employed by the Senate or House rather than from a private attorney hired and compensated by the member.]



524 James J. Brudney, Congressional Accountability and Denial: Speech or Debate Clause and Conflict of Interest Challenges to Uuionzation of Congressional Employees, Harvard Journal on Legislation, Winter, 1999.

525 Id.

526 See, Public Law, No. 104-1, §§ 405(a), 408(b), 109 Stat. 33, 37 (1995) (codified at 2 U.S.C. §§ 1405(a), 1408(b) (Supp. II 1996)).

A second important factor is the extent to which the CAA shields members themselves from litigation even while making Congress accountable as an institution. Employee complaints

may be brought only against the employing office, not the member individually.45 Accordingly, in a court or other formal proceeding the respondent employing office is likely to receive representation from counsel employed by the Senate or House rather than from a private attorney hired and compensated by the member.46


45 See Pub. L. No. 104-1, §§ 405(a), 408(b), 109 Stat. 33, 37 (1995) (codified at 2 U.S.C. §§ 1405(a), 1408(b) (Supp. HI 1996)).

46 Acting pursuant to the House Employees Position Classification Act, 2 U.S.C. §§ 294(d)(7), 300 (1994), the Committee on House Oversight established a new Office of House Employment Counsel in late 1995. The Office was authorized inter alia to represent House employing offices in actions brought under the CAA. See Letter from Rep. Bill Thomas, Chairman of Committee on House Oversight, to Robin H. Carlo, Clerk of the House (Dec. 22, 1995) (on file with author); Dear Colleague Letter from Chairman Thomas and Ranking Minority Member Rep. Vic Fazio (D-Cal.) (Apr. 30, 1996) (on file with author). The Senate Chief Counsel for Employment performs a similar representational function for Senate employing offices. See 142 CoNo. REc. H10,026 (daily ed. Sept. 4, 1996). It was established in 1993 at the direction of Senate leaders from both parties, and was formerly called the Office of Senate Legal Counsel, Employee/Management Relations. See 140 CONG. REc. S1391 (daily ed. Feb. 10, 1994)

Anmerkungen

Quelle ist in Fn. 524 genannt; Art und Umfang der Übernahme bleiben ungekennzeichnet.

Sichter
(Graf Isolan), SleepyHollow02

[7.] Wy/Fragment 171 01 - Diskussion
Bearbeitet: 15. September 2013, 22:21 WiseWoman
Erstellt: 15. September 2013, 19:26 (Graf Isolan)
Brudney 1999, Fragment, Gesichtet, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wy

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13.3.2.1 Congressional Self –regulation Prior to the CAA

For more than 100 years, Congress exempted itself from coverage when enacting laws that created rights enforceable against private and public employers. The Civil Service Act of 1883 restricted patronage in the Executive Branch, but not in Congress. Major workplace protection statutes enacted during the 1930s and 1960s similarly excluded congressional employees while covering private employers, local governments, and executive agencies.519 In more recent times, outside observers as well as individual legislators have criticized Congress’s unwillingness to submit to the laws it imposed on others.520

Congressional reluctance to extend existing laws as written reflected in part a concern that Executive Branch enforcement and judicial review raised serious separation of power problems. Article I of the Constitution bestows upon each chamber the power to regulate and discipline its members, and upon each member privileges from outside arresting or questioning.

Burdened and perhaps fortified with such reservations, Congress in its initial efforts at self-regulation produced unenforceable or inadequate internal requirements, promulgated either through one-house rules or resolutions or through statutory provisions applicable to one chamber’s employees.


519 For example, the Fair Labor Standards Act covered private employers when enacted in 1938; it was amended to apply to state and local governments and federal executive agencies in 1966, but not to employees of Congress. See 29 U.S.C. § 203(d), (e) (1994). Title VII of the 1964 Civil Rights Act initially covered private employers; it was amended to include state and local government employers and federal executive agencies in 1972. See, 42 U.S.C. §§ 2000e(b), (f); 2000e-16 (1994). The Age Discrimination in Employment Act of 1967 originally applied to private employers; it was extended to state and local governments and the Executive Branch in 1974. See, 29 U.S.C. §§ 630(b), 633a (1994).

520 Report of the Joint Committee on Congressional Operations, The Constitutional Immunity of Menmbers [sic] of Congress, S. Rep. No. 93-896, p.38-39, 53, (2d Sess. 1974).

[Seite 5]

A. Employee Protections Prior to the CAA

For more than 100 years, Congress exempted itself from coverage when enacting laws that created rights enforceable against private and public employers. The Civil Service Act of 1883 restricted patronage in the Executive Branch, but not in Congress.19 Major workplace protection statutes enacted during the 1930s and 1960s similarly excluded congressional employees while covering private employers, local governments, and executive agencies.20 In more recent times, outside observers as well as individ-

[Seite 6]

ual legislators have criticized Congress's unwillingness to submit to the laws it imposed on others.21

Congressional reluctance to extend existing laws as written reflected in part a concern that Executive Branch enforcement and judicial review raised serious separation of powers problems. Article I of the Constitution bestows upon each chamber the power to regulate and discipline its members,22 and upon each member privileges from outside arrest or questioning.

[Seite 7]

Burdened and perhaps fortified with such reservations, Congress in its initial efforts at self-regulation produced unenforceable or inadequate internal requirements, promulgated either through one-house rules or resolutions25 or through statutory provisions applicable to one chamber's employees.26


19 See Civil Service Act, ch. 27, §§ 2, 13, 14, 22 Stat. 403, 404, 407 (1883).

20 For example, the Fair Labor Standards Act covered private employers when enacted in 1938; it was amended to apply to state and local governments and federal executive agencies in 1966, but not to employees of Congress. See 29 U.S.C. § 203(d), (e) (1994). Title VII of the 1964 Civil Rights Act initially covered private employers; it was amended to include state and local government employers and federal executive agencies in 1972. See 42 U.S.C. §§ 2000e(b), (f); 2000e-16 (1994). The Age Discrimination in Employment Act of 1967 originally applied to private employers; it was extended to state and local governments and the Executive Branch in 1974. See 29 U.S.C. §§ 630(b), 633a (1994).

21 See, e.g., THOMAS W. REED & BRADLEY T. CAMERON, ABOVE THE LAW: GOVERNING CONGRESS UNDER FEDERAL EMPLOYMENT LAWS 2-4, 8-9, 11-12, 17, 19-20 (1994) (quoting numerous members of the Senate and House expressing opposition to the double standard created by Congress); Editorial, Make Congress Obey Itself, N.Y. TIMEs, Apr. 12, 1993, at A16; Daniel Rapoport, The Imperial Congress: Living Above the Law, NAT'L. J., June 2, 1979, at 911-15. In the early 1970s, members of Congress began questioning in relatively measured terms their failure to hold themselves accountable. See, e.g., REPORT OF THE JOINT COMMITTEE ON CONGRESSIONAL OPERATIONS, THE CONSTITUTIONAL IMMUNITY OF MEMBERS OF CONGRESS, S. Rep. No. 93- 896, at 38-39, 53 (2d Sess. 1974) [hereinafter CONSTITUTIONAL IMMUNITY OF MEMBERS OF CONGRESS.] This self-criticism had become more pointed and persistent by the early 1990s. See, e.g., 137 CONG. REC. S15,384 (daily ed. Oct. 29, 1991) (statement of Sen. John Seymour (R-Cal.)) (describing congressional immunity from civil rights laws as "a cancer of unaccountability"); 136 CONG. REC. S9369 (daily ed. July 10, 1990) (statement of Sen. Orrin Hatch (R-Utah)) (claiming as a "moral question" that the Senate should not be above the law); Representatives Bill Goodling & Harris Fawell (RInd.), Congressional Coverage-The Time Has Come, 44 LAB. L.J. 259, 259 (1993) (decrying "the hypocrisy of Congress exempting itself from the laws it applies to others"). See also 125 CONG. REc. 10,589, 10,591 (1979) (statement of Sen. John Glenn (D-Ohio)) (referring to Congress as "the last plantation").

22 U.S. Const. art. I, § 5, cl.1, 2.

25 See, e.g., H.R. Res. 5, 94th Cong., 121 CONG. REC. 20, 22 (1975) (enacted) (House Rule prohibiting members from discriminating in employment because of race, color, religion, sex, or national origin; no provision for enforcement); H.R. Res. 558, 100th Cong., 134 CONG. REC. 27,840 (1988) (enacted) (prohibiting discrimination in House of Representatives employment; establishing Office of Fair Employment Practices to offer counseling and mediation and to adjudicate formal complaints; and providing for exclusive review of Office decisions by panel of House members and House employees); S. Res. 534, 94th Cong., 122 CONG. REC. 29,282 (1976) (enacted) (providing for equal employment opportunities in the Senate with no reference to enforcement).

26 See, e.g., Fair Labor Standards Amendments of 1989, Pub. L. No. 101-157, § 8, 103 Stat. 938, 944 (codified at 2 U.S.C. § 60k (1994)) (applying minimum wage but not overtime provisions of Fair Labor Standards Act to House employees, provision to be administered by Office of Fair Employment Practices based on H.R. Res. 558, supra note 25); Government Employee Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1088 (codified as amended at 2 U.S.C. §§ 1201 - 24 (1994)) (protecting Senate employees against discrimination on basis of race, color, religion, sex, national origin, age, disability; establishing Office of Senate Fair Employment Practices to enforce protections; providing for review of Office decisions by Senate Select Committee on Ethics and for further review upon petition before U.S. Court of Appeals for Federal Circuit).

Anmerkungen

Weitgehend vom Fußnotenapparat befreite wörtliche Übernahme ohne jede Kenntlichmachung.

Sichter
(Graf Isolan), WiseWoman

[8.] Wy/Fragment 099 101 - Diskussion
Bearbeitet: 15. September 2013, 22:08 WiseWoman
Erstellt: 15. September 2013, 12:44 (Graf Isolan)
Fragment, Gesichtet, Joint Committee on Parliamentary Privilege - Freedom of Speech 1999, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wy

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Quelle: Joint Committee on Parliamentary Privilege - Freedom of Speech 1999
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[Strangers] also may take part in the proceedings of a House, for example by giving evidence before it or one of its committees, or by securing presentation of a petition.”301

301 May, 22nd ed., 1997, p.95. While referring to this definition, J P Joseph Maingot, Parliamentary Privilege in Canada(2nd ed), McGill-Queen’s University press, 1997, p.80 gives this supplementary definition: “As a technical parliamentary term, ‘proceedings’ are the events and the steps leading up to some formal action, including a decision, taken by the House in its collective capacity. All of these steps and events, the whole process by which the House reaches a decision (the principal part of which is called debate), are “proceedings”.

98. [...] Strangers also may take part in the proceedings of a House, for example by giving evidence before it or one of its committees, or by securing presentation of a petition.'[152]

152 22nd ed (1997), p 95. While referring to this definition, J P Joseph Maingot QC, in Parliamentary Privilege in Canada (1997), p 80 gives this supplementary definition: `As a technical parliamentary term, `proceedings' are the events and the steps leading up to some formal action, including a decision, taken by the House in its collective capacity. All of these steps and events, the whole process by which the House reaches a decision (the principal part of which is called debate), are `proceedings.

Anmerkungen

Kein Hinweis auf eine Übernahme. Auch wenn hier Zitate wie im Original deutlich als solche erkennbar sind, ist hier doch die gesamte Verweisstruktur in toto übernommen worden.

Sichter
(Graf Isolan), WiseWoman

[9.] Wy/Fragment 098 06 - Diskussion
Bearbeitet: 15. September 2013, 22:07 WiseWoman
Erstellt: 14. September 2013, 23:09 (Graf Isolan)
BauernOpfer, Fragment, Gesichtet, Joint Committee on Parliamentary Privilege - Freedom of Speech 1999, SMWFragment, Schutzlevel sysop, Wy

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Quelle: Joint Committee on Parliamentary Privilege - Freedom of Speech 1999
Seite(n): 1 (Internetquelle), Zeilen: -
No comprehensive definition has been determined either by Parliament or by judicial decision.300 In 1689, when parliamentary proceedings were much simpler, a definition may have been thought unnecessary. But this is not so when the phrase is applied to present day parliamentary activities and members’ activities. In several respects the scope of this expression is not clear today.

The broad description in Erskine May is a useful starting place: “The primary meaning of proceedings, as a technical parliamentary term … is some formal action, usually a decision, taken by the House in its collective capacity. This is naturally extended to the forms of business in which the House takes action, and the whole process, the principal part of which is debate, by which it reaches a decision. An individual member takes part in a proceeding usually by speech, but also by various recognized forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee, most of such actions being time-saving substitutes for speaking. Officers of the House take part in its proceedings principally by carrying out its orders, general or particular. Strangers [also may take part in the proceedings of a House, for example by giving evidence before it or one of its committees, or by securing presentation of a petition.”301]


300 See, Gareth Griffith, Parliamentary Privilege: Use, Misuse and Proposals for Reform, http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/key/ParliamentaryPrivelige:MajorDevelopmentsandCurrentIssues.

[301 May, 22nd ed., 1997, p.95. While referring to this definition, J P Joseph Maingot, Parliamentary Privilege in Canada(2nd ed), McGill-Queen’s University press, 1997, p.80 gives this supplementary definition: “As a technical parliamentary term, ‘proceedings’are the events and the steps leading up to some formal action, including a decision, taken by the House in its collective capacity. All of these steps and events, the whole process by which the House reaches a decision (the principal part of which is called debate), are “proceedings”.]

97. [...] No comprehensive definition has been determined either by Parliament or by judicial decision. In 1689, when parliamentary proceedings were much simpler, a definition may have been thought unnecessary. But this is not so when the phrase is applied to present day parliamentary activities and members' activities. In several respects the scope of this expression is not clear today. [...] [151]

98. The broad description in Erskine May is a useful starting place:

`The primary meaning of proceedings, as a technical parliamentary term, . . . is some formal action, usually a decision, taken by the House in its collective capacity. This is naturally extended to the forms of business in which the House takes action, and the whole process, the principal part of which is debate, by which it reaches a decision. An individual member takes part in a proceeding usually by speech, but also by various recognised forms of formal action, such as voting, giving notice of a motion, or presenting a petition or report from a committee, most of such actions being time-saving substitutes for speaking. Officers of the House take part in its proceedings principally by carrying out its orders, general or particular. Strangers also may take part in the proceedings of a House, for example by giving evidence before it or one of its committees, or by securing presentation of a petition.'[152]


151 For references see footnote 18 above.

152 22nd ed (1997), p 95. While referring to this definition, J P Joseph Maingot QC, in Parliamentary Privilege in Canada (1997), p 80 gives this supplementary definition: `As a technical parliamentary term, `proceedings' are the events and the steps leading up to some formal action, including a decision, taken by the House in its collective capacity. All of these steps and events, the whole process by which the House reaches a decision (the principal part of which is called debate), are `proceedings.

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Art und Umfang der Übernahme bleiben ungekennzeichnet.

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(Graf Isolan), WiseWoman

[10.] Wy/Fragment 169 01 - Diskussion
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In the past the House of Commons frequently, and the House of Lords less often, exercised their power to commit non-members for conduct perceived as an offence and adjudged as a contempt. Offenders were committed either to the custody of Black Rod or the Serjeant-at-Arms or directly to one of Her Majesty’s prisons. By the mid-nineteenth century both Parliament and the courts were becoming uneasy about the exercise of this power without any procedure for review. The power of committal has not been exercised by the House of Lords since early in the nineteenth century and not by the House of Commons since 1880.515

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

22. In the past the House of Commons frequently, and the House of Lords less often, exercised their power to commit non-members for conduct perceived as an offence and adjudged as a contempt. Offenders were committed either to the custody of Black Rod or the Serjeant-at-Arms or directly to one of Her Majesty's prisons. By the mid-nineteenth century both Parliament and the courts were becoming uneasy about the exercise of this power without any procedure for review. The power of committal has not been exercised by the House of Lords since early in the nineteenth century and not by the House of Commons since 1880[79] (although the latter has contemplated using the power on several occasions since then).

79 See paragraphs 271, 300 below.

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(Graf Isolan), WiseWoman

[11.] Wy/Fragment 168 03 - Diskussion
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Over the last century or more the House of Lords has seldom been troubled by complaints of breach of privilege. This has not been true of the House of Commons, where even in the present century there have been frequent complaints of breach of privilege, meaning contempt, some of which appear in retrospect to have been trivial and unworthy. It took the House ten years formally to accept the advice of the 1967 committee that it should be less sensitive in reacting to alleged contempts. In 1977 the House decided: “Its penal jurisdiction should be exercised (a) in any event as sparingly as possible, and (b) only when the House is satisfied that to exercise it is essential in order to provide reasonable protection for the House, its members or its officers, from such improper obstruction or attempt at or threat of obstruction as is causing, or is likely to cause, substantial interference with the performance of their respective functions”.514

In practice, the House of Commons now treats as contempt only serious breaches of rules by its own members or obstruction by others which it believes interfere seriously with the work of the House or its members. Actions constituting a prima facie contempt nevertheless still cover a wide area: from leaking a draft report of a select committee, or serving a subpoena on a member within the precincts of the House, to intimidating a witness before a committee or bribing a member.


514 CJ (1977-78) 170, agreeing to paragraph 4 of the Third Report from the Committee of Privileges, HC (1976-77) 417.

20. Over the last century or more the House of Lords has seldom been troubled by complaints of breach of privilege. This has not been true of the House of Commons, where even in the present century there have been frequent complaints of breach of privilege, meaning contempts, some of which appear in retrospect to have been trivial and unworthy. It took the House ten years formally to accept the advice of the 1967 committee that it should be less sensitive in reacting to alleged contempts. In 1977 the House decided:

`its penal jurisdiction should be exercised (a) in any event as sparingly as possible, and (b) only when the House is satisfied that to exercise it is essential in order to provide reasonable protection for the House, its members or its officers, from such improper obstruction or attempt at or threat of obstruction as is causing, or is likely to cause, substantial interference with the performance of their respective functions'.[78]

21. This has markedly reduced the number of occasions when the House or a committee of privileges has considered such matters. In practice the House of Commons now treats as a contempt only serious breaches of rules by its own members or obstruction by others which it believes interfere seriously with the work of the House or its members. Actions constituting a prima facie contempt nevertheless still cover a wide area: from leaking a draft report of a select committee, or serving a subpoena on a member within the precincts of the House, to intimidating a witness before a committee or bribing a member.


78 CJ (1977-78) 170, agreeing to paragraph 4 of the Third Report from the Committee of Privileges, HC (1976-77) 417.

Anmerkungen

Kein Hinweis auf eine Übernahme.

Sichter
(Graf Isolan), WiseWoman

[12.] Wy/Fragment 154 01 - Diskussion
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[The] court held that this had denied the person’s rights to a fair and impartial hearing476.

In 2002, a British citizen took actions in the court on the ground that she had been subject to discrimination as a result of criticism of her family by a member of the House of Commons. She argued that her right to the determination of her civil rights and obligations by a fair and impartial hearing had been violated by the use of the parliamentary privilege. Presumably because of the wider significance of this case, several European nations were permitted to make submissions. The action failed in the court ruling that parliamentary privilege did not impose a disproportionate restriction on the right of access to a court.477 In 2003 the Court held that immunity did not apply to the repetition out of parliament by a member of Italy’s parliament of a defamatory statement made during proceedings.478 Human rights legislation at a national or state/territory level may also be important to a Parliament.479 The New Zealand Bill of Rights Act 1990 sets out rights and freedoms that the House must observe in exercising its privileges, although the Act does not abrogate any of the House’s privileges. 480 Internal parliamentary processes, such as practices for the protection of witnesses before [the Privileges Committee, take account of these requirements.481]


476 Demicoli v. Malta (1992) 14 EHRR 47; May, 23rd ed., p.155.

477 May, 23rd ed., p.199; Mme Ponceau, Privileges andImmunities [sic] in Parliament, The Association of Secretaries General of Parliaments (ASGP) meeting 17-19 October 2005, [1].

478 Mme Ponceau, Privileges and Immunities in Parliament, The Association of Secretaries General of Parliaments (ASGP) meeting 17-19 October 2005, [2].

479 See, For example Canada (House of Commons) v. Vaid (2005) SCC 30 (Supreme Court of Canada), 20 May, 2005.

480 David McGee, Parliamentary Practice in New Zealand, 2nd ed, Wellington: GP Publications, 1994, p.611.

The court held that this had denied the person’s rights to a fair and impartial hearing88. In 2002 a British citizen took action in the court on the ground that she had been subject to discrimination as a result of criticism of her family by a member of the House of Commons. She argued that her right to the determination of her civil rights and obligations by a fair and impartial hearing had been violated by the use of parliamentary privilege. Presumably because of the wider significance of this case, several European nations were permitted to make submissions. The action failed, the court ruling that parliamentary privilege did not impose a disproportionate restriction on the right of access to a court89. In 2003 the Court held that immunity did not apply to the repetition out of parliament by a member of Italy’s parliament of a defamatory statement made during proceedings90.

8.3 Human rights legislation at a national or state/territory level may also be important to a Parliament91. The New Zealand Bill of Rights Act 1990 sets out rights and freedoms that the House must observe in exercising its privileges, although the Act does not abrogate any of the House’s privileges92. Internal parliamentary processes, such as practices for the protection of witnesses before the Privileges Committee, take account of these requirements93.


87 Campbell, op cit, pp 204-8.

88 Demicoli v. Malta (1992) 14 EHRR 47; May, op cit, p 155.

89 May, op cit, p 199; M Jack A. v the UK ‘The Table’ (2003), pp 35-40; ASGP, op cit, p 66.

90 ASGP, op cit, p 66.

91 See, for example Canada (House of Commons) v Vaid (2005) SCC 30 (Supreme Court of Canada, 20 May 2005).

92 McGee op cit, p 611.

93 Ibid, pp 611, 667.

Anmerkungen

Ganzseitige Übernahme ohne Angabe der Quelle.

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(SleepyHollow02, Singulus) Schumann

[13.] Wy/Fragment 018 04 - Diskussion
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The origins of parliamentary privilege are to be found chiefly in ancient practice, asserted by Parliament and accepted over time by the Crown and the courts as the law and custom of Parliament. Some of the Commons ancient privileges, such as freedom from arrest, were claimed from the Sovereign and upheld with his consent.62 Other privileges were established by Parliament itself.

62 See, Erskine May, 22nd ed., pp.72-78.

5. The sources of parliamentary privilege are to be found chiefly in ancient practice, asserted by Parliament and accepted over time by the Crown and the courts as the law and custom of Parliament.[51] [...] Some of the Commons ancient privileges, such as freedom from arrest, were claimed from the Sovereign and upheld with his consent.[52] Other privileges were established by Parliament itself.

51 5 Hatsell, Precedents of Proceedings in the House of Commons (1818), vol 1, p 2.

52 6 Erskine May, 22nd edition (1997) pp 72-78, and the authorities cited therein; GR Elton, The Parliament of England 1559-1581, (1986) p 333; Cassidy v Steuart (1841) 133 ER 817.

Anmerkungen

Kein Hinweis auf eine Übernahme.

Sichter
(Graf Isolan), WiseWoman

[14.] Wy/Fragment 031 03 - Diskussion
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4.2 Constitutional Functions

If parliamentary privilge [sic] is set in a broader constitutional context, the justification for parliamentary privilge [sic] is that the freedom to control their own proceedings and the freedom of speech in Parliament are necessary if the Houses of Parliamentary [sic] are to fulfill their constitutional functions effectively, that is, to inquire, debate and legislate. In Vaid case, the supreme court of Canada said that parliamentary privilge [sic] is necessary “to protect legislator in discharge of their legislative and deliberative functions, and the legislative assembly’s work in government to account for the conduct of the country’s business.107

The UK Joint Committee had this to say:

Without this protection, Members of Parliament would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a deliberative forum would be diminished.108

4.3 Separation of Powers

[...] Parliamentary privilege can be located [within what has been called the ‘rough’ doctrine of the separation of powers.]


107 Canada (House of Commons) v. Vaid [2005] SCC 30, at para. 41.

108 Joint Committee on Parliamentary Privilege, p.8.

[Seite 6]

2.5 Constitutional functions

In Vaid parliamentary privilege is set in a broader constitutional context. The justification for parliamentary privilege is that the freedom to control their own proceedings and the freedom of speech in Parliament are necessary if the Houses of Parliament are to perform their constitutional functions effectively - that is, to inquire, debate and legislate. The Supreme Court of Canada said that parliamentary privilege is ‘necessary’ to protect legislators in the discharge of their legislative and deliberative

[Seite 7]

functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business.26

The UK Joint Committee had this to say:

Without this protection, members of Parliament would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a deliberative forum would be diminished.27

2.6 Separation of powers

Parliamentary privilege can be located within what has been called the ‘rough’ doctrine of the separation of powers that operates in Westminster parliamentary systems.


26 [2005] 1 SCR 667 at para 41.

27 Joint Committee on Parliamentary Privilege, n 6, p 8.

Anmerkungen

Kein Hinweis auf eine Übernahme.

Sichter
(Graf Isolan) Agrippina1

[15.] Wy/Fragment 034 01 - Diskussion
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[Like parliamentary privilege, the prerogative consists of special rules that “evolved to enable public] bodies to perform their functions”.115 In both cases the rules were customary in origin, and were developed and decided in special courts – the Star Chamber or Privy Council where the prerogative powers were concerned, the High Court of Parliament in the case of parliamentary privilege. Dicey wrote:

Between “prerogative” and “privilege” there exists a close analogy: the one is the historical name for the discretionary authority of the Crown; the other is the historical name for the discretionary authority of each House of Parliament.116

At odds as the two doctrines were historically, there may yet be parallels to draw between the ways the courts have brought both species of discretionary powers more and more under the rule of the general law.


115 C Munro, Studies in Constitutional Law, Butterworths, 1987, p.136.

116 A.V. Dicey, Introduction to the Study of the Law of the Constitution, 6th ed., Macmillan, 1902, p.371.

[Seite 8]

Like parliamentary privilege, the prerogative consists of special rules that ‘evolved to enable public bodies to perform their functions’.32 In both cases the rules were customary in origin, and were developed and decided in special courts – the Star Chamber or Privy Council where the prerogative powers were concerned, the High Court of Parliament in the case of parliamentary privilege. AV Dicey wrote:

Between ‘prerogative’ and ‘privilege’ there exists a close analogy: the one is the historical name for the discretionary authority of the Crown; the other is the historical name for the discretionary authority of each House of Parliament.33

At odds as the two doctrines were historically, there may yet be parallels to draw between the way the courts have brought both species of discretionary powers

[Seite 9]

more and more under the rule of the general law.


32 C Munro, Studies in Constitutional Law, Butterworths, 1987, p 136.

33 AV Dicey, Introduction to the Study of the Law of the Constitution, 6th edition, Macmillan 1902, p 371.

Anmerkungen

Kein Hinweis auf die erneut wortwörtliche Übernahme.

Sichter
(Graf Isolan) Agrippina1

[16.] Wy/Fragment 033 01 - Diskussion
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[The House of Commons] would not have become the powerful institution that it is if the views of those

monarchs had prevailed. The importance of Parliament under the Westminster system is in no small part due to the seemingly inconsequential right of the House of Commons to control its business.113

In contemporary terms it is sometimes said that the focus is on the relationship between Parliament and the courts – on the separation of judicial and legislative power - with parliamentary privilege operating “now as a constraint on the judicial arm of government”.114

One might ask whether this particular separation of powers continues to be ‘necessary’ now that the courts are recognised to be independent of the Executive. Do the same constitutional first principles apply in contemporary circumstances as in the past? Are the same immunities required or, stating the issue in another way, should the immunities relating to freedom of speech in Parliament be placed on a different constitutional basis?

A further consideration is that, as the earlier statements from Vaid show, parliamentary privilege also serves to assert Parliament’s independence from the modern day Executive. Parliament’s immunities prevent incursions into parliamentary freedoms, by commissions of inquiry, police questioning or other means. Its powers facilitate the scrutiny of the Executive on behalf of the electorate.

Parallels can also be drawn with the prerogative powers. Like parliamentary privilege, the prerogative consists of special rules that “evolved to enable public [bodies to perform their functions”.115]


113 (1998) 195 CLR 424, p.478.

114 Mees v Roads Corporation (2003) 128 FCR 418, at para.78.

[115 C Munro, Studies in Constitutional Law, Butterworths, 1987, p.136.]

The House of Commons would not have become the powerful institution that it is if the views of those monarchs had prevailed. The importance of Parliament under the Westminster system is in no small part due to the seemingly inconsequential right of the House of Commons to control its business.30

In contemporary terms it is sometimes said that the focus is on the relationship between Parliament and the courts – on the separation of judicial and legislative power - with parliamentary privilege operating ‘now as a constraint on the judicial arm of government’.31

One might ask whether this particular separation of powers continues to be ‘necessary’ now that the courts are recognised to be independent of the Executive? Do the same constitutional first principles apply in contemporary circumstances as in the past? Are the same immunities required or, stating the issue in another way, should the immunities relating to freedom of speech in Parliament be placed on a different constitutional basis?

A further consideration is that, as the earlier statements from Vaid show, parliamentary privilege also serves to assert Parliament’s independence from the modern day Executive. Parliament’s immunities prevent incursions into parliamentary freedoms, by commissions of inquiry, police questioning or other means. Its powers facilitate the scrutiny of the Executive on behalf of the electorate.

Parallels can also be drawn with the prerogative powers. Like parliamentary privilege, the prerogative consists of special rules that ‘evolved to enable public bodies to perform their functions’.32


30 (1998) 195 CLR 424 at 478.

31 Mees v Roads Corporation (2003) 128 FCR 418 at para 78.

32 C Munro, Studies in Constitutional Law, Butterworths, 1987, p 136.

Anmerkungen

Kein Hinweis auf eine Übernahme 1:1.

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(Graf Isolan) Agrippina1

[17.] Wy/Fragment 032 01 - Diskussion
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[Parliamentary privilege can be located] within what has been called the ‘rough’ doctrine of the separation of powers. As Lamer CJ in New Brunswick Broadcasting v. Nova Scotia said “given its historical development, it is fair to say that its [parliamentary privilege] source is constitutional in the most fundamental sense in that it has everything to do with the relationship between the different branches of government.”110

David McGee also indicate: “Privilege is part of the way in which the separation of powers is delineated…and a principal means of effecting a modus vivendi between the legislature and the other two branches of government…Parliamentary privilege…helps preserve Parliament’s freedom from outside control and to give it and its members the legal tools and confidence they will need to perform their constitutional functions.”111

Historically, in 17th century England, parliamentary privilege was political, not legal, in origin, forged in the conflict between Parliament, the Executive and the courts. The fundamental rights of the House of Commons were asserted against the prerogatives of the Crown and the authority of the courts. The assertion of privilege was a declaration of its independence from the other branches of government.112

McHugh J in Egan v Willis stated: The view of the Tudor and Stuart monarchs was that the House of Commons was summoned only to vote on the appropriations asked of them, to approve legislation submitted to them and to express opinions on matters of policy only when asked.


110 [1993] 1 SCR 319.

111 David McGee, The Scope of Parliamentary Privilege, NZLJ, Vol. 84, 2004.

112 Gareth Griffith, Parliamentary Privilege: First Principles and Recent Applications, www.parliament.nsw.gov.au/WEB_FEED/PHWebContent.nsf/PHPages/LibraryPublications.

[Seite 7]

Parliamentary privilege can be located within what has been called the ‘rough’ doctrine of the separation of powers that operates in Westminster parliamentary systems. As Lamer CJ in New Brunswick Broadcasting v Nova Scotia28 said

given its historical development, it is fair to say that its [parliamentary privilege] source is constitutional in the most fundamental sense in that it has everything to do with the relationship between the difference [sic!] branches of government.

In the words of David McGee:

Privilege is part of the way in which the separation of powers is delineated…and a principal means of effecting a modus vivendi between the legislature and the other two branches of government…Parliamentary privilege…helps preserve Parliament’s freedom from outside control and to give it and its members the legal tools and confidence they will need to perform their constitutional functions.29

Historically, in 17th century England, parliamentary privilege was political, not legal, in origin, forged in the conflict between Parliament, the Executive and the courts. The fundamental rights of the House of Commons were asserted against the prerogatives of the Crown and the authority of the courts. The assertion of privilege was a declaration of its independence from the other branches of government.

McHugh J in Egan v Willis stated:

The view of the Tudor and Stuart monarchs was that the House of Commons was summoned only to vote on the appropriations asked of [them, to approve legislation submitted to them and to express opinions on matters of policy only when asked.]

[Seite 8]


28 [1993] 1 SCR 319.

29 David McGee, ‘The scope of parliamentary privilege’ [2004] NZLJ 84.

Anmerkungen

Art und Umfang der Übernahme bleiben ungekennzeichnet. Die Quellenangabe zum 3. Absatz in Fußnote 112 (mit heute nicht mehr funktionierendem Link) lässt die größtenteils wörtlichen Zitate auf der gesamten Seite nicht erkennen.

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[18.] Wy/Fragment 111 01 - Diskussion
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[Whether a Member of Parliament may be liable in defamation if the member makes a defamatory statement in the House of Representatives – a statement which is protected by absolute privilege under article 9 of the Bill of Rights 1688 –] and later affirms the statement (but without repeating it) on an occasion which is not protected by privilege.335

Affirmation or ‘effective repetition’ has been found to amount to no more than a Member confirming that they ‘stand by’ what they said in Parliament or, as in Buchanan v Jennings, that they “do not resile” from what they said in the House. The facts of the case were that, in December 1997 the MP, Jennings, alleged abuse of expenditure and an illicit relationship on the part of officials involved in the sponsorship of a sporting tour. He was subsequently interviewed by a journalist who then published an article recording that Jennings withdrew some of his financial allegations, and reported him as saying that he ‘did not resile’ from his claim about the illicit relationship between the officials and the sponsors. The affirmation or ‘effective repetition’ was admitted that the evidence and damages were awarded against Jennings in both the New Zealand High Court and the Court of Appeal. From there it went to the Privy Council, which upheld the earlier rulings. There was no doubt that what Jennings said in the House was protected by absolute privilege. However, that privilege did not extend to cover his republication of that statement by reference outside the House.336

But Buchanan v. Jennings has proved a controversial decision. In May 2005 the Privileges Committee of the New Zealand House of Representatives published its report on the case in which it recommended that the Legislature Act 1908 is amended to provide that no person may incur criminal or civil liability for making any statement that affirms, adopts or endorses words written or spoken in [proceedings in Parliament where the statement would not, but for the proceedings in Parliament, give rise to criminal or civil liability.337]


335 [2005] 1 AC 115.

336 Gareth Griffith, Parliamentary Privilege: Major Developments and Current Issues, http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/18DBE18C7D65CDF0CA2572D100091751/$File/ParliamentaryPrivelige07.pdf.

[337 Privileges Committee, Final Report on the question of privilege referred 21 July 1998 concerning Buchanan v Jennings, 1.17G, May 2005, p.9; For a commentary see – A Geddis, Parliamentary privilege: quis custodiet ipsos custodes? Public Law,Winter, 2005.]

[Seite 64]
whether a Member of Parliament may be liable in defamation if the member makes a defamatory statement in the House of Representatives – a statement which is protected by absolute privilege under article 9 of the Bill of Rights 1688 – and later affirms the statement (but without repeating it) on an occasion which is not protected by privilege.235

Affirmation or ‘effective repetition’ has been found to amount to no more than a Member confirming that they ‘stand by’236 what they said in Parliament or, as in Buchanan v Jennings, that they ‘do not resile’ from what they said in the House. The facts of the case were that, in December 1997 the MP, Jennings, alleged abuse of expenditure and an illicit relationship on the part of officials involved in the sponsorship of a sporting tour. He was

[Seite 65]

subsequently interviewed by a journalist who then published an article recording that Jennings withdrew some of his financial allegations, and reported him as saying that he ‘did not resile’ from his claim about the illicit relationship between the officials and the sponsors. The affirmation or ‘effective repetition’ was admitted into evidence and damages were awarded against Jennings in both the New Zealand High Court and the Court of Appeal. From there it went to the Privy Council, which upheld the earlier rulings. There was no doubt that what Jennings said in the House was protected by absolute privilege. However, that privilege did not extend to cover his republication of that statement by reference outside the House.

[Seite 66]

Buchanan v Jennings has proved a controversial decision. In May 2005 the Privileges Committee of the New Zealand House of Representatives published its report on the case in which it recommended that the Legislature Act 1908 be amended to provide that no person may incur criminal or civil liability for making any statement that affirms, adopts or endorses words written or spoken in proceedings in Parliament where the statement would not, but for the proceedings in Parliament, give rise to criminal or civil liability.243


235 [2005] 1 AC 115 at para 1.

236 Beitzel v Crabb [1992] 2 VR 121. The plaintiff was able to base his proceedings on a radio interview in which the defendant member of Parliament refused to apologise to the plaintiff for what he had earlier said in the Victorian Parliament and said that he stood by what he has said there.

243 Privileges Committee, Final Report on the question of privilege referred 21 July 1998 concerning Buchanan v Jennings, 1.17G, May 2005, p 9. For a commentary see – A Geddis, ‘Parliamentary privilege: quis custodiet ipsos custodes? [Winter 2005] Public Law 696.

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[For his first cause of action based on these defamatory remarks the plaintiff could not succeed without relying] on the naming of him in the House. This was held, rightly in the opinion of the Board, to be impermissible.332 The Privy Council continued:

For the purposes of the action it must be assumed that the defendant’s conduct was proper: if it was not, it was a matter for the House, not the court; and privilege is conferred for the benefit of Parliament as an institution, and of the nation as a whole, not for the benefit of any individual member. Thus the defendant had to be free to name the plaintiff in Parliament if he judged it right to do so, without fear of adverse civil consequences.333

On the other hand, the speech in Parliament was admissible to support the second cause of action in Peters v. Cushing. This arose from the effective repetition of the defamatory statement in a subsequent television interview on 10 October 1993. In this context it was ruled that Hansard could be relied on, not to support the cause of action or as a foundation for it, but to prove what occurred in Parliament as an historical fact.334

The third case, Buchanan v Jennings, was one of the affirmation or “effective repetition” outside Parliament of what was said inside Parliament. As formulated by the Privy Council, the principle in issue was:

Whether a Member of Parliament may be liable in defamation if the member makes a defamatory statement in the House of Representatives – a statement which is protected by absolute privilege under article 9 of the Bill of Rights 1688– [and later affirms the statement (but without repeating it) on an occasion which is not protected by privilege.]335


332 Buchanan v. Jennings [2005] 1 AC 115.

333 [2005] 1 AC 115.

334 [1999] NZAR 241.

[335 [2005] 1 AC 115.]

:For his first cause of action based on these defamatory remarks the plaintiff could not succeed without relying on the naming of him in the House. This was held, rightly in the opinion of the Board, to be impermissible.232

The Privy Council continued:

For the purposes of the action it must be assumed that the defendant’s conduct was proper: if it was not, it was a matter for the House, not the court; and privilege is conferred for the benefit of Parliament as an institution, and of the nation as a whole, not for the benefit of any individual member. Thus the defendant had to be free to name the plaintiff in Parliament if he judged it right to do so, without fear of adverse civil consequences.233

On the other hand, the speech in Parliament was admissible to support the second cause of action in Peters v Cushing. This arose from the effective repetition of the defamatory statement in a subsequent television interview on 10 October 1993. In this context it was ruled that Hansard could be relied on, not to support the cause of action or as a foundation for it, but to prove what occurred in Parliament as an historical fact.234

The third case, Buchanan v Jennings, was one of the affirmation or ‘effective repetition’ outside Parliament of what was said inside Parliament. As formulated by the Privy Council, the principle in issue was:

whether a Member of Parliament may be liable in defamation if the member makes a defamatory statement in the House of Representatives – a statement which is protected by absolute privilege under article 9 of the Bill of Rights 1688 – and later affirms the statement (but without repeating it) on an occasion which is not protected by privilege.235

232 Buchanan v Jennings [2005] 1 AC 115 at para 19.

233 [2005] 1 AC 115 at para 19.

234 [1999] NZAR 241 at 249 (Ellis J) and 255 (Grieg J).

235 [2005] 1 AC 115 at para 1.

Anmerkungen

Ganzseitige Übernahme.

Sichter
(Singulus), WiseWoman

[20.] Wy/Fragment 102 01 - Diskussion
Bearbeitet: 14. September 2013, 20:07 WiseWoman
Erstellt: 13. September 2013, 23:04 (Graf Isolan)
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[As the debate on search] warrants in Parliament showed, the potential for issues relevant to parliamentary privilege to arise is considerable. As the debate on search warrants in Parliament showed, the potential for issues relevant to parliamentary privilege to arise is considerable.
Anmerkungen

Schließt die auf der vorangegangenen Seite begonnene Übernahme ab (vgl. Wy/Fragment_101_01).

Sichter
(Graf Isolan), WiseWoman

[21.] Wy/Fragment 101 01 - Diskussion
Bearbeitet: 14. September 2013, 20:04 WiseWoman
Erstellt: 13. September 2013, 22:58 (Graf Isolan)
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[In support of judicial review, the joint judgment noted that the general position is that proceedings of a party’s caucus are] not proceedings of Parliament. In our view, the judgment of the High Court in……was not correctly decided.308

Having reviewed the objections of Joseph and McGee to the High Court’s decision, the Court of Appeal noted:

Importantly, Mr.McGee goes on to say that even where caucus discussed legislation before the House privilege would not attach to the discussions. The concept of proceedings in Parliament was limited to “essential steps to parliamentary action” and caucus discussions could not be viewed in that light…For these reasons we agree that Rata was wrongly decided on the privilege point.309

9.2 Parliamentary Proceeding and Parliamentary Committees, Other Bodies

With the proliferation of integrity oversee and adviser’s questions arise as to the relationship of some or all of their activities to Parliament. This is especially the case where these bodies assist Parliament in an investigatory capacity. Often the relationship between Parliament and these bodies in complex and intimate.310 The connections are obvious in relation to those officers established to oversight parliamentary standards or ethics. In other cases parliamentary committees may be established to oversight independent integrity commissions, as in the case of the ICAC (Independent Commission against Corruption) or the Ombudsman in NSW in Australia. Further, the ICAC is an example of an integrated survey whose brief includes inquiring into the conduct of parliamentarians.


308 [2004] NZCA 147.

309 [2004] NZCA 147.

310 Gareth Griffith, Parliamentary Privilege: Major Developments and Current Issues, http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/18DBE18C7D65CDF0CA2572D100091751/$File/ParliamentaryPrivelige07.pdf.

In support of judicial review, the joint judgment noted that
the general position is that proceedings of a party’s caucus are not proceedings of

Parliament. In our view, the judgment of the High Court in Rata v A-G…was not correctly decided.211

Having reviewed the objections of Joseph and McGee to the High Court’s decision, the Court of Appeal noted:

Importantly, Mr McGee goes on to say that even where caucus discussed legislation before the House privilege would not attach to the discussions. The concept of proceedings in Parliament was limited to ‘essential steps to parliamentary action’ and caucus discussions could not be viewed in that light…For these reasons we agree that Rata was wrongly decided on the privilege point.212

6.2 Parliamentary proceedings and parliamentary committees, commissioners and independent commissions

With the proliferation of integrity watchdogs and advisers questions arise as to the relationship of some or all of their activities to Parliament. This is especially the case where these bodies assist Parliament in an investigatory capacity. Often the relationship between Parliament and these bodies in complex and intimate. The connections are obvious in relation to those officers established to oversight parliamentary standards or ethics. In other cases parliamentary committees may be established to oversight independent integrity commissions, as in the case of the ICAC or the Ombudsman in NSW. Further, the ICAC is an example of an integrity watchdog whose brief includes inquiring into the conduct of parliamentarians.


211 [2004] NZCA 147 at para 63 (McGrath, Glazebrook and O’Regan JJ).

212 [2004] NZCA 147 at para 64 (McGrath, Glazebrook and O’Regan JJ).

Anmerkungen

Art und Umfang der Übernahme sind ungekennzeichnet.

Sichter
(Graf Isolan), WiseWoman

[22.] Wy/Fragment 109 01 - Diskussion
Bearbeitet: 14. September 2013, 19:59 WiseWoman
Erstellt: 13. September 2013, 21:26 (Graf Isolan)
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[TVNZ pleaded truth and fair comment and mitigation of damages on the basis of the plaintiff’s reputation as a politician and] sought to refer to speeches in the House by the plaintiff and other Ministers. The Privy Council struck out the evidence TVNZ was seeking to rely on, holding that to impugn, or even simply to inquire into, a Member’s motives is to ‘impeach’ or ‘question’ and is prohibited. It made no difference that the plaintiff in the case was an MP. On the other hand, Hansard could be used to prove what Prebble had said in the House on certain days, or that the State-Owned Enterprises Act 1986 (which facilitated the sale of state assets) had passed the House and received the Royal Assent.

The second is Peters v. Cushing330 where the defamatory statement at issue was first made outside Parliament and only later confirmed in a parliamentary context. The question, therefore, was whether parliamentary proceedings could be used to establish a cause of action in defamation where the extra-parliamentary confirmation preceded the parliamentary publication? This evidence was ruled to be inadmissible, with Grieg J stating that the parliamentary statement was ‘not to be admitted merely to prove what had occurred in Parliament but to support, indeed found the cause of action against Mr Peters’. 331 Commenting on the case, the Privy Council said:

In Peters v. Cushing…the defendant defamed the plaintiff, but without naming or identifying him, in television interviews broadcast on 1 and 3 June 1992. His remarks excited considerable public interest and on 10 June 1992 he named the plaintiff in the House of Representatives. For his first cause of action based on these defamatory remarks the plaintiff could not succeed without relying [sought to refer to speeches in the House by the plaintiff and other Ministers.]


330 [1999] NZAR 241.

331 [1999] NZAR 241 p. 255.

TVNZ pleaded truth and fair comment and mitigation of damages on the basis of the plaintiff’s reputation as a politician and sought to refer to speeches in the House by the plaintiff and other Ministers. The Privy Council struck out the evidence TVNZ was seeking to rely on, holding that to impugn, or even simply to inquire into, a Member’s motives is to ‘impeach’ or ‘question’ and is prohibited. It made no difference that the plaintiff in the case was an MP. On the other hand, Hansard could be used to prove what Prebble had said in the House on certain days, or that the State-Owned Enterprises Act 1986 (which facilitated the sale of state assets) had passed the House and received the Royal Assent.

In the first cause of action in Peters v Cushing230 the defamatory statement at issue was first made outside Parliament and only later confirmed in a parliamentary context. The question, therefore, was whether parliamentary proceedings could be used to establish a cause of action in defamation where the extra-parliamentary confirmation preceded the parliamentary publication? This evidence was ruled to be inadmissible, with Grieg J stating that the parliamentary statement was ‘not to be admitted merely to prove what had occurred in Parliament but to support, indeed found the cause of action against Mr Peters’.231 Commenting on the case, the Privy Council said:

In Peters v Cushing…the defendant defamed the plaintiff, but without naming or identifying him, in television interviews broadcast on 1 and 3 June 1992. His

[S. 64]

remarks excited considerable public interest and on 10 June 1992 he named the plaintiff in the House of Representatives. For his first cause of action based on these defamatory remarks the plaintiff could not succeed without relying [...]

230 [1999] NZAR 241.

231 [1999] NZAR 241 at 255.

Anmerkungen

Kein Hinweis auf eine Übernahme.

Sichter
(Graf Isolan, Singulus), WiseWoman

[23.] Wy/Fragment 108 12 - Diskussion
Bearbeitet: 14. September 2013, 19:55 WiseWoman
Erstellt: 13. September 2013, 21:21 (Graf Isolan)
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In recent years, three major New Zealand cases have considered the issues relevant to the use that may or may not be made of parliamentary proceedings in actions for defamation, all of which are distinguishable on the facts.

The first is Prebble v Television New Zealand329 where the defendants (TVNZ) sought to rely on statements in Parliament, from which adverse inferences were to be drawn. In that case a former Labour Minister, Richard Prebble, alleged that a TVNZ program had cast him as having conspired with business leaders and public officials to sell state assets at firesale prices in return for donations to the Labour Party. TVNZ pleaded truth and fair comment and mitigation of damages on the basis of the plaintiff’s reputation as a politician and [sought to refer to speeches in the House by the plaintiff and other Ministers.]


329 [1995] 1 AC 321.

In recent years three major New Zealand cases have considered the issues relevant to the use that may or may not be made of parliamentary proceedings in actions for defamation, all of which are distinguishable on the facts.

The first is Prebble v Television New Zealand229 where the defendants (TVNZ) sought to rely on statements in Parliament, from which adverse inferences were to be drawn. In that case a former Labour Minister, Richard Prebble, alleged that a TVNZ program had cast him as having conspired with business leaders and public officials to sell state assets at firesale prices in return for donations to the Labour Party. TVNZ pleaded truth and fair comment and mitigation of damages on the basis of the plaintiff’s reputation as a politician and sought to refer to speeches in the House by the plaintiff and other Ministers.


229 [1995] 1 AC 321.

Anmerkungen

Kein Hinweis auf eine Übernahme.

Sichter
(Graf Isolan), WiseWoman

[24.] Wy/Fragment 045 01 - Diskussion
Bearbeitet: 14. September 2013, 18:44 WiseWoman
Erstellt: 13. September 2013, 10:25 (Graf Isolan)
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[The freedom of speech of Members in the House, in fact, is the essential pre-requisite for the efficient discharge of their parliamentary duties, in the absence of which, they may not be able to speak out their mind and express their views in the] House without any fear. Importance of this right for the Members of Parliament is underlined by the immunity accorded to them from civil or criminal proceedings in a court of law for having made any speech/ disclosure or any vote cast inside the House or a committee thereof. Any investigation outside Parliament, of anything that a member says or does in the discharge of his parliamentary duties amounts to a serious interference with the member’s freedom of speech in the House. Therefore, to attack a member or to take or even threaten to take any action against him including institution of legal proceedings on account of

anything said or any vote given by him on the floor of the House would amount to a gross violation of the privilege of a member.

[Seite 206]

The freedom of speech of members in the House, in fact, is the essential pre-requisite for the efficient discharge of their parliamentary duties, in the absence of which, they may not be able to speak out their mind and express their views in the House without any fear. Importance of this right for the Members of Parliament is underlined by the immunity accorded to them from civil or criminal proceedings in a court of law for having made any speech/ disclosure or any vote cast inside the House or a committee thereof. Any investigation outside Parliament, of anything that a member says or does in the discharge of his parliamentary duties amounts to a serious interference with the member's freedom of speech in the House. Therefore, to attack a member or to take or even threaten to take any action against him

[Seite 207]

including institution of legal proceedings on account of anything said or any vote given by him on the floor of the House would amount to a gross violation of the privilege of a member.

Anmerkungen

Kein Hinweis auf eine Übernahme.

Sichter
(Graf Isolan) Singulus

[25.] Wy/Fragment 166 01 - Diskussion
Bearbeitet: 14. September 2013, 18:33 Graf Isolan
Erstellt: 14. September 2013, 18:14 (Graf Isolan)
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The final ruling on the “parliamentary privilege” aspect to the case was

delivered by the House of Lords, in a unanimous judgment delivered by Lord Browne-Wilkinson. Curiously, it was only at this stage that the determining influence of the waiver of privilege under s 13 was given its full weight. At first instance, Popplewell J had not even referred directly to s 13.508 Subsequently, the Court of Appeal had indeed concluded that s 13 “trumped” parliamentary privilege, but only after a lengthy discussion as to whether the two parliamentary investigations were “proceedings in Parliament”.509

In summary, the Court of Appeal held that the report of the Parliamentary Commissioner for Standards and that of the Committee on Standards and Privileges were “ ‘proceedings in Parliament’ and that Popplewell J had been in error and had himself breached parliamentary privilege by criticizing the procedures adopted by the Parliamentary Commissioner for Standards. To this point the Court of Appeal and the House of Lords were in agreement. However, the Court of Appeal had then ruled that parliamentary privilege would not have been infringed if the action had gone forward. On the facts of the case, the House of Lords could not accept this argument, saying that it would have been ‘impossible for Mr Al Fayed to have had a fair trial in this action if he had been precluded from challenging the evidence produced to the parliamentary committees on behalf of Mr Hamilton’ ”. Lord Browne-Wilkinson concluded: “Had it not been for section 13, the court should, in my judgment, have stayed the libel action brought by Mr Hamilton…”510


508 [2001] 1 AC 395, p.407.

509 Hamilton v. Al Fayed [1999] 3 All ER 317.

510 [2001] 1 AC 395, p.408.

The final ruling on the ‘parliamentary privilege’ aspect to the case was delivered by the

House of Lords, in a unanimous judgment delivered by Lord Browne-Wilkinson. Curiously, it was only at this stage that the determining influence of the waiver of privilege under s 13 was given its full weight. At first instance, Popplewell J had not even referred directly to s 13.200 Subsequently, the Court of Appeal had indeed concluded that s 13 ‘trumped’ parliamentary privilege, but only after a lengthy discussion as to whether the two parliamentary investigations were ‘proceedings in Parliament’.201

In summary, the Court of Appeal held that the report of the Parliamentary Commissioner for Standards and that of the Committee on Standards and Privileges were ‘proceedings in Parliament’ and that Popplewell J had been in error and had himself breached parliamentary privilege by criticizing the procedures adopted by the Parliamentary Commissioner for Standards. To this point the Court of Appeal and the House of Lords were in agreement. However, the Court of Appeal had then ruled that parliamentary privilege would not have been infringed if the action had gone forward. On the facts of the case, the House of Lords could not accept this argument, saying that it would have been ‘impossible for Mr Al Fayed to have had a fair trial in this action if he had been precluded from challenging the evidence produced to the parliamentary committees on behalf of Mr Hamilton’. Lord Browne-Wilkinson concluded: ‘Had it not been for section 13, the court should, in my judgment, have stayed the libel action brought by Mr Hamilton…’.202


200 [2001] 1 AC 395 at 405-406.

201 Hamilton v Al Fayed [1999] 3 All ER 317.

202 [2001] 1 AC 395 at 408.

Anmerkungen

Identisch ohne Hinweis auf eine Übernahme.

Sichter
(Graf Isolan) Agrippina1

[26.] Wy/Fragment 165 04 - Diskussion
Bearbeitet: 14. September 2013, 18:26 Graf Isolan
Erstellt: 14. September 2013, 18:06 (Graf Isolan)
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13.2 Waiver of Parliamentary Privilege

The case of Hamilton v Al Fayed507 arose out of the ‘cash for questions’ scandal of the 1990s. In January 1997, the defendant (Al Fayed) alleged on a TV program that the plaintiff, the MP Neil Hamilton, had sought and accepted cash from him for asking questions on his behalf in the House of Commons. Two parliamentary investigations and reports followed, one by the Parliamentary Commissioner for Standards which concluded that Hamilton had received cash payments from Al Fayed, the other by the Committee on Standards and Privileges, whose report was approved by the House of Commons in November 1997. In January 1998, Hamilton commenced proceedings against Al Fayed for defamation in respect to the allegations made by him on the TV program. In doing so, Hamilton waived his parliamentary privilege, pursuant to s 13 of the Defamation Act, as amended in 1996. This provision enables an MP (or any other participant in parliamentary proceedings) who considers he has been defamed to waive parliamentary privilege and bring proceedings for defamation even though such proceedings would otherwise amount to a breach of parliamentary privilege. On his side, Al Fayed sought to strike out Hamilton’s claim on the grounds that the hearing of the action: (a) would contravene Article 9’s prohibition against questioning ‘proceedings in Parliament’; and (b) would constitute a collateral attack on Parliament’s own investigation into the MP’s conduct.


507 [2001] 1 AC 395.

[Seite 55]

5.4.2 Waiver of privilege – s 13 of the Defamation Act (UK)

The case of Hamilton v Al Fayed198 arose out of the ‘cash for questions’ scandal of the 1990s. In January 1997, the defendant (Al Fayed) alleged on a TV program that the plaintiff, the MP Neil Hamilton, had sought and accepted cash from him for asking questions on his behalf in the House of Commons. Two parliamentary investigations and reports followed, one by the Parliamentary Commissioner for Standards which concluded that Hamilton had received cash payments from Al Fayed, the other by the Committee on Standards and Privileges, whose report was approved by the House of Commons in November 1997. In January 1998, Hamilton commenced proceedings against Al Fayed for defamation in respect to the allegations made by him on the TV program. In doing so, Hamilton waived his parliamentary privilege, pursuant to s 13 of the Defamation Act, as amended in 1996.199 This provision enables an MP (or any other participant in

[Seite 56]

parliamentary proceedings) who considers he has been defamed to waive parliamentary privilege and bring proceedings for defamation even though such proceedings would otherwise amount to a breach of parliamentary privilege. On his side, Al Fayed sought to strike out Hamilton’s claim on the grounds that the hearing of the action: (a) would contravene Article 9’s prohibition against questioning ‘proceedings in Parliament’; and (b) would constitute a collateral attack on Parliament’s own investigation into the MP’s conduct.


198 [2001] 1 AC 395.

199 For the background to s 13 see – Joint Committee on Parliamentary Privilege, n 2, p 23. For a commentary on s 13 and ‘waiver of privilege’ generally see – Campbell, Parliamentary [Privilege, n 147, Ch 8.]

Anmerkungen

Kein Hinweis auf eine Übernahme.

Sichter
(Graf Isolan) Agrippina1

[27.] Wy/Fragment 102 03 - Diskussion
Bearbeitet: 14. September 2013, 18:25 Graf Isolan
Erstellt: 13. September 2013, 20:49 (Graf Isolan)
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This is uncertainty relates to Parliamentary proceeding and Committees and other investigatory bodies such as the Ombudsman. In NSW (New South Wales ) state of Australia, there is a so case. A man, who was Mr Russell Grove, was raised in his briefing to the Legislation Committee on the Defamation Bill 1992. In fulfilling their statutory functions committees handle a large amount of correspondence and, in order to ensure that the absolute privilege afforded to Hansard transcripts of committee proceedings is obtained, committees are at present prepared to hold formal hearings.311

As the NSW Law Reform Commission said, this is despite the fact that the committee’s acknowledge that “this is an over elaborate, expensive and inefficient means of referring a simple matter, such as a letter received from a member of the public which contains potentially defamatory allegations, to the ICAC or Ombudsman for comment and response”.312 Mr Grove commented, “This impedes the Committee’s ability to properly fulfill their statutory duties, and should be rectified”.313 Mr Grove proposed adoption of a provision along the lines of section 17 of the federal Parliamentary Privileges Act 1987 (Cth)314 which, for [the purposes of the Act, permits the Presiding Officers may certify as to whether any of the following are “proceedings in Parliament”:]


311 See, Gareth Griffith, Parliamentary Privilege: Use, Misuse and Proposals for Reform, [3].

312 NSWLRC, Discussion Paper 32 - Defamation, August 1993, p.138.

313 Report of the Legislation Committee Upon the Defamation Bill 1992, p.60.

314 Parliamentary Privileges Act1987, Section 17 (Certificates relating to proceedings): For the purposes of this Act, a certificate signed by or on behalf of the President of the Senate, the Speaker of the House of Representatives or a chairman of a committee stating that: (a) a particular document was prepared for the purpose of submission, and submitted, to a House or a committee; (b) a particular document was directed by a House or a committee to be treated as evidence taken in camera; (c) certain oral evidence was taken by a committee in camera; (d) a document was not published or authorised to be published by a House or a committee; (e) a person is or was an officer of a House; (f) an officer is or was required to attend upon a House or a committee; (g) a person is or was required to attend before a House or a committee on a day; (h) a day is a day on which a House or a committee met or will meet; or (i) a specified fine was imposed on a specified person by a House; is evidence of the matters contained in the certificate.

[Seite 29]

A second area of uncertainty relates to correspondence received by Parliamentar y [sic] Committees and passed on to other investigatory bodies such as the ICAC or th e [sic] Ombudsman . The matter was raised originally by Mr Russell Grove in his briefing to the Legislation Committee on the Defamation Bill 1992. In fulfilling their statutory functions committees handle a large amount of correspondence and, in order to ensure

[Seite 30]

that the absolute privilege afforded to Hansard transcripts of committee proceedings is obtained, committees are at present prepared to hold formal hearings. As the NSW Law Reform Commission said, this is despite the fact that the committee’s acknowledge that ‘this is an overelaborate, expensive and inefficient means of referring a simple matter, such as a letter received from a member of the public which contains potentially defamatory allegations, to the ICAC or Ombudsman for comment and response’.117 Mr Grove commented, ‘This impedes the Committee’s ability to properly fulfil their statutory duties, and should be rectified’.118 Mr Grove proposed adoption of a provision along the lines of section 17 of the federal Parliamentary Privileges Act 1987 (Cth) which, for the purposes of the Act, permits the Presiding Officers may certify as to whether any of the following are ‘proceedings in Parliament’: (a) a particular document prepared for the purpose of submission, and submitted to a House or a committee; (b) a particular document directed by a House or a committee to be treated as evidence taken in camera; (c) certain oral evidence taken by a committee in camera; and (d) a document not published dor [sic] authorised to be published by a House or a committee. The proposal was adopted by the Legislation Committee119 but not, it seems, by the NSW Law Reform Commission.120


117 NSWLRC, Discussion Paper 32 - Defamation, August 1993, p 138.

118 Report of the Legislation Committee Upon the Defamation Bill 1992, p 60.

119 Ibid, p 62.

120 NSWLRC, Report 75 - Defamation, September 1995, p 174.

Anmerkungen

Art und Umfang der Übernahme bleiben ungekennzeichnet.

Die Artikel (a) bis (d) werden von Wy nicht nur in der Fußnote sondern auch in Übereinstimmung mit der Vorlage wörtlich auf der nächsten Seite wieder aufgeführt.

Sichter
(Graf Isolan) Singulus

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[Bringing these cases together, Neil Laurie, Clerk of the Queensland Legislative Assembly, comments that the determinative factor for the courts when deciding if a report, decision or investigation constitutes a parliamentary proceeding is ‘the nature of the role of the body in each case, the particular function being discharged and their relationship with the Parliament or committee] of the Parliament’.325 Irrespective of whether a committee, commission or commissioner is created by statute, the issue is whether its work, in the circumstances in question, is fundamentally an extension of the Parliament’s proceedings:

What is important is to determine whether the functions of the investigation are primarily directed to assisting the Parliament discharge its functions or, more particularly, whether the investigation, decision or report itself is a proceeding of the Parliament.326

9.3 Parliamentary Proceeding and Effective Repetition


325 Gareth Griffith, Parliamentary Privilege: Major Developments and Current Issues, http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/18DBE18C7D65CDF0CA 2572D100091751/$File/ParliamentaryPrivelige07.pdf.

326 N.Laurie, Parliamentary Committees, Commissioners, Independent Commissions – Parliamentary Privilege and Judicial review of Decisions, Investigations or Reports’, Australasian Parliamentary Review, Spring, 2002.

Bringing these cases together, Neil Laurie, Clerk of the Queensland Legislative Assembly, comments that the determinative factor for the courts when deciding if a report, decision or investigation constitutes a parliamentary proceeding is ‘the nature of the role of the body in each case, the particular function being discharged and their relationship with the Parliament or committee of the Parliament’. Irrespective of whether a committee,

commission or commissioner is created by statute, the issue is whether its work, in the circumstances in question, is fundamentally an extension of the Parliament’s proceedings:

What is important is to determine whether the functions of the investigation are primarily directed to assisting the Parliament discharge its functions or, more particularly, whether the investigation, decision or report itself is a proceeding of the Parliament.226

6.3 Parliamentary proceedings used to support legal proceedings – ‘effective repetition’


226 N Laurie, n 216, pp 228-229.

Anmerkungen

Art und Umfang der Übernahme bleiben ungekennzeichnet.

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[29.] Wy/Fragment 106 01 - Diskussion
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[The report at issue was] into an unauthorised disclosure by the CJC concerning an inquiry into a Member of Parliament. The investigation undertaken by the Parliamentary Commissioner

was at the request of the PCJC. In the event, the Parliamentary Commissioner found out in her report to the PCJC that the CJC was the source of the unlawful disclosure. For its part, the CJC sought orders declaring that:

a) The report of the Parliamentary Commissioner was ultra vires;

b) That in the circumstances the Parliamentary Commissioner could not make findings of guilt; and

c) That the Parliamentary Commissioner had not observed the requirements of procedural fairness. The Speaker intervened, arguing that to grant the first declaration – that the report was ultra vires – would be to directly impeach and question the report contrary to Article 9. That view was upheld, both at first instance323 and on appeal. The request by the PCJC that an investigation be undertaken by the Parliamentary Commissioner was held to constitute a proceeding in Parliament, as was the investigation and subsequent report. McPherson JA concluded: “It follows that this Court, like others in Queensland, is precluded by Art. 9 of the Bill of Rights from questioning the validity or propriety of the [Parliamentary] Commissioner’s investigation and report”.324

Bringing these cases together, Neil Laurie, Clerk of the Queensland Legislative Assembly, comments that the determinative factor for the courts when deciding if a report, decision or investigation constitutes a parliamentary proceeding is ‘the nature of the role of the body in each case, the particular function being discharged and their relationship with the Parliament or committee [of the Parliament’.325]


323 CJC & Ors v Dick [2000] QSC 272.

324 [2002] 2 Qd R 8 at 22.

[325 Gareth Griffith, Parliamentary Privilege: Major Developments and Current Issues, http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/18DBE18C7D65CDF0CA 2572D100091751/$File/ParliamentaryPrivelige07.pdf.]

[Seite 61]

The report at issue was into an unauthorised disclosure by the CJC concerning an inquiry into a Member of Parliament. The investigation undertaken by the Parliamentary Commissioner was at the request of the PCJC. In the event, the Parliamentary Commissioner found in her report to the PCJC that the CJC was the source of the unlawful disclosure. For its part, the CJC sought orders declaring that: (a) the report of the Parliamentary Commissioner was ultra vires; (b) that in the circumstances the Parliamentary Commissioner could not make findings of guilt; and (c) that the Parliamentary Commissioner had not observed the requirements of procedural fairness. The Speaker intervened, arguing that to grant the first declaration – that the report was ultra vires – would be to directly impeach and question the report contrary to Article 9. That view was upheld, both at first instance223 and on appeal. The request

[Seite 62]

by the PCJC that an investigation be undertaken by the Parliamentary Commissioner was held to constitute a proceeding in Parliament,224 as was the investigation and subsequent report. McPherson JA concluded: ‘It follows that this Court, like others in Queensland, is precluded by art. 9 of the Bill of Rights from questioning the validity or propriety of the [Parliamentary] Commissioner’s investigation and report’.225

Bringing these cases together, Neil Laurie, Clerk of the Queensland Legislative Assembly, comments that the determinative factor for the courts when deciding if a report, decision or investigation constitutes a parliamentary proceeding is ‘the nature of the role of the body in each case, the particular function being discharged and their relationship with the Parliament or committee of the Parliament’.



223 CJC & Ors v Dick [2000] QSC 272 (Helman J).

224 At that time defined by s 3 of the now repealed Parliamentary Paper Act 1992 (Qld).

225 [2002] 2 Qd R 8 at 22. Campbell notes that the Court did consider whether the report was ultra vires and whether the Commissioner had failed to observe the requirements of procedural justice. Campbell comments, ‘Arguably they should not have been considered at all once the court was satisfied that the matters in which the plaintiffs (CJC) sought declarations were proceedings in Parliament’ – Campbell, n 147, p 92.

Anmerkungen

Der Verweis auf Griffith (2007) findet sich erst auf der Folgeseite und nur im Zusammenhang mit einem kurzen Zitat aus einer anderen Quelle.

Auf dieser Seite erfolgt kein Hinweis auf eine Übernahme.

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[30.] Wy/Fragment 181 01 - Diskussion
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Perhaps the most serious reservation expressed by both Committees was that, as the rebuttal is likely to appear several weeks after the original allegation, the reply will be robbed of “any immediacy”, with the WA Standing Committee adding that the Senate procedures also “required the drafting of cumbersome regulations which are not easy to interpret in practice and it is difficult to find any evidence to this stage that they have added significantly to the rights available to citizens”.545

On the other hand, the Commission on Government found in support of a right of reply, concluding “We are firmly of the view that this innovation is a very high priority amongst the citizens of this State, and is one that is demonstrably workable”.546


545 Western Australia, Report of the Parliamentary Standards Committee, Vol 1, 1989, p.55

546 Western Australia, Commission on Government, Report No 1, August, 1995, p.385.

[Seite 49]

Perhaps the most serious reservation expressed by both Committees was that, as the rebuttal is likely to appear several weeks after the original allegation, the reply will be robbed of ‘any immediacy’, with the WA Standing Committee adding that the Senate procedures also ‘required the drafting of cumbersome regulations which are not easy to interpret in practice and it is

[Seite 50]

difficult to find any evidence to this stage that they have added significantly to the rights available to citizens’.200 On the other hand, the Commission on Government found in support of a right of reply, concluding ‘we are firmly of the view that this innovation is a very high priority amongst the citizens of this State, and is one that is demonstrably workable’.201


200 Western Australia, Report of the Parliamentary Standards Committee, Vol 1, 1989, p 55.

201 Western Australia, Commission on Government, Report No 1, August 1995, p 385.

Anmerkungen

Kein Hinweis auf eine Übernahme.

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(Graf Isolan) Singulus

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[A] detailed account of its method of operation is set out in 1996 report of the Senate Committee of Privileges, but the essence of it is stated by Odgers in these terms: “A person aggrieved by a reference to the person in the Senate may make a submission to the President requesting that a response be published. The submission is scrutinised by the Privileges Committee, which is not permitted to inquire into the truth or merits of statements in the Senate or of the submission, and provided the suggested response is not in any way offensive, it may be incorporated in Hansard or ordered to be published”.543 The 1996 report says that since 1988 only 22 responses have been recommended for publication. A further five were not proceeded with because the person concerned chose not to pursue the matter after the Committee had made contact. In no case had the Committee refused a right of reply. The relative dearth of right of reply cases was analysed in the report but at the same time the conclusion was reached that “the procedure is both desirable and successful”. In most cases, the report noted, the Committee found that “the persons have been concerned not with vengeance or apology, but rather to ensure that their voice is heard or views are put in the same medium as the original comments were made”. It added that the procedure is usually “quick, cheap and effective” and open to anyone, “regardless of either skill or financial capacity”.544

The merits and demerits of a right of reply have been debated in several jurisdictions. In its 1995 report the WA Commission on Government reviewed developments in that State. It noted that in 1989 the Parliamentary Standards Committee had rejected the idea of introducing a right of reply and that in doing so it followed the 1988-89 report of the British House of Commons Select [Committee on Procedure.]


543 H Evans, Odgers’ Australian Senate Practice, 11th ed., Department of the Senate 2004, p.65.

544 The Senate Committee of Privileges, 62nd Report, June, 1996, p.17

A detailed account of its method of operation is set out in 1996 report of the Senate Committee of Privileges, but the essence of it is stated by Odgers in these terms: ‘A person aggrieved by a reference to the person in the Senate may make a submission to the President requesting that a response be published. The submission is scrutinised by the Privileges Committee, which is not permitted to inquire into the truth or merits of statements in the Senate or of the submission, and provided the suggested response is not in any way offensive, it may be incorporated in Hansard or ordered to be published’.197 The 1996 report says that since 1988 only 22 responses have been recommended for publication. A further five were not proceeded with because the person concerned chose not to pursue the matter after the Committee had made contact. In no case had the Committee refused a right of reply. The relative dearth of right of reply cases was analysed in the report but at the same time the conclusion was reached that ‘the procedure is both desirable and successful’. In most cases, the report noted, the Committee found that ‘the persons have been concerned not with vengeance or apology, but rather to ensure that their voice is heard or views are put in the same medium as the original comments were made’.198 It added that the procedure is usually ‘quick, cheap and effective’ and open to anyone, ‘regardless of either skill or financial capacity’.199

The merits and demerits of a right of reply have been debated in several jurisdictions. In its 1995 report the WA Commission on Government reviewed developments in that State. It noted that in 1989 the Parliamentary Standards Committee had rejected the idea of introducing a right of reply and that in doing so it followed the 1988-89 report of the British House of Commons Select Committee on Procedure.


197 Odgers’ Australian Senate Practice, p 65.

198 The Senate Committee of Privileges, 62nd Report, June 1996, p 17.

199 Ibid at 18.

Anmerkungen

Kein Hinweis auf eine Übernahme.

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(Graf Isolan) Singulus

[32.] Wy/Fragment 099 06 - Diskussion
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9.1 Caucus Meetings and Parliamentary Proceeding

Rata v. Attorney-General, a High Court of New Zealand case from 1997, Master Thompson held that, as Caucus is integral to the parliamentary system, in the interest of ‘robust debate’ what is said there must be absolutely privileged. He concluded:

a) As a matter of principle the caucus system as it has developed in New Zealand is an integral part of the parliamentary process and that all matters transacted in caucus are inextricably linked to Parliament…

b) If that general proposition is wrong then any discussion and related papers will be privileged when they relate to the passage of legislation (present or future) or any matter which is before the House.303


303 Rata v A-G (1997) 10 PRNZ 304, p.313.

6.1 Parliamentary proceedings and party Caucus meetings

In Rata v Attorney-General, a High Court of New Zealand case from 1997, Master Thompson held that, as Caucus is integral to the parliamentary system, in the interest of ‘robust debate’ what is said there must be absolutely privileged. He concluded:

(a) As a matter of principle the caucus system as it has developed in New Zealand is an integral part of the parliamentary process and that all matters transacted in caucus are inextricably linked to Parliament…

(b) If that general proposition is wrong then any discussion and related papers will be privileged when they relate to the passage of legislation (present or future) or any matter which is before the House…206


206 Rata v A-G (1997) 10 PRNZ 304 at 313.

Anmerkungen

Kein Hinweis auf eine Übernahme.

Sichter
(Graf Isolan) Singulus

[33.] Wy/Fragment 179 07 - Diskussion
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In view of this circumstance, the introduction of a citizen’s right of reply has

been canvassed on many occasions on the ground that it would offer some means of reply for people who feel that they have been unfairly attacked under the cover of privilege. The 1984 Commonwealth Joint Select Committee on Parliamentary Privilege concluded on this issue: “We think the only practical solution consistent with the maintenance in its most untrammelled form of freedom of speech and the rights of members of the public to their good reputation may lie - and we emphasise the word ‘may’ - in adopting an internal means of placing on record an answer to a Parliamentary attack. If such an answer is to have any efficacy, we think it should become part of the record of Parliament so as to carry back to the forum in which the attack was made a refutationor [sic] explanation”.541 The Committee recommended that complaints be: (a) subject torigorous [sic] screening; (b) that there be clear limits on what may be put in an answer which is to be incorporated in Hansard; and (c) that complaints are raised directly with the Privileges Committees.542

The Australian Senate in 1988 was the first legislature to adopt a right of reply as part of a package of resolutions relating to parliamentary privilege.


541 Parliament of the Commonwealth, Joint Select Committee on Parliamentary Privilege, Final Report, October, 1984, p.55.

542 See, Parliament of the Commonwealth, Joint Select Committee on Parliamentary Privilege, Final Report, October, 1984.

[Seite 48]

The following proposals can be noted at this stage:

(i) citizens right of reply: the introduction of a citizens right of reply has been canvassed on many occasions on the ground that it would offer some means of reply for people who feel that they have been unfairly attacked under the cover of privilege. The 1984 Commonwealth Joint Select Committee on Parliamentary Privilege concluded on this issue: ‘We think the only practical solution consistent with the maintenance in its most untrammelled form of freedom of speech and the rights of members of the public to their good reputation may lie - and we emphasise the word “may” - in adopting an internal means of placing on record an answer to a Parliamentary attack. If such an answer is to have any efficacy, we think it should become part of the record of

[Seite 49]

Parliament so as to carry back to the forum in which the attack was made a refutation or explanation’.195 The Committee recommended that complaints be: (i) subject to rigorous screening; (ii) that there be clear limits on what may be put in an answer which is to be incorporated in Hansard; and (iii) that complaints be raised directly with the Privileges Committees.

The Australian Senate in 1988 was the first legislature to adopt a right of reply as part of a package of resolutions relating to parliamentary privilege.196


195 Parliament of the Commonwealth, Joint Select Committee on Parliamentary Privilege, Final Report, October 1984, p 55.

196 The 11 resolutions on parliamentary privilege agreed to by the Senate on 25 February 1988 are set out at Appendix ??. [sic]

Anmerkungen

Kein Hinweis auf eine Übernahme.

Sichter
(Graf Isolan) Singulus

[34.] Wy/Fragment 103 01 - Diskussion
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[Mr Grove proposed adoption of a provision along the lines of section 17 of the federal Parliamentary Privileges Act 1987 (Cth)314 which, for] the purposes of the Act, permits the Presiding Officers may certify as to whether any of the following are “proceedings in Parliament”:

a) A particular document prepared for the purpose of submission, and submitted to a House or a committee;

b) A particular document directed by a House or a committee to be treated as evidence taken in camera;

c) Certain oral evidence taken by a committee in camera; and

d) A document not published or authorised to be published by a House or a committee. The proposal was adopted by the Legislation Committee but not, it seems, by the NSW Law Reform Commission.315

It is, however, in other country, notably the UK, that the case law has developed. At issue are two related questions: Does the disputed evidence constitute parliamentary proceedings? If the proceedings are internal to Parliament, do they lie outside the jurisdiction of the courts?316


[314 Parliamentary Privileges Act1987, Section 17 (Certificates relating to proceedings): For the purposes of this Act, a certificate signed by or on behalf of the President of the Senate, the Speaker of the House of Representatives or a chairman of a committee stating that: (a) a particular document was prepared for the purpose of submission, and submitted, to a House or a committee; (b) a particular document was directed by a House or a committee to be treated as evidence taken in camera; (c) certain oral evidence was taken by a committee in camera; (d) a document was not published or authorised to be published by a House or a committee; (e) a person is or was an officer of a House; (f) an officer is or was required to attend upon a House or a committee; (g) a person is or was required to attend before a House or a committee on a day; (h) a day is a day on which a House or a committee met or will meet; or (i) a specified fine was imposed on a specified person by a House; is evidence of the matters contained in the certificate.]

315 NSWLRC, Report 75 - Defamation, September, 1995, p.174.

316 Gareth Griffith, Parliamentary Privilege: Major Developments and Current Issues, http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/18DBE18C7D65CDF0CA2572D100091751/$File/ParliamentaryPrivelige07.pdf.

Mr Grove proposed adoption of a provision along the lines of section 17 of the federal Parliamentary Privileges Act 1987 (Cth) which, for the purposes of the Act, permits the Presiding Officers may certify as to whether any of the following are ‘proceedings in Parliament’: (a) a particular document prepared for the purpose of submission, and submitted to a House or a committee; (b) a particular document directed by a House or a committee to be treated as evidence taken in camera; (c) certain oral evidence taken by a committee in camera; and (d) a document not published dor [sic] authorised to be published by a House or a committee. The proposal was adopted by the Legislation Committee119 but not, it seems, by the NSW Law Reform Commission.120

119 Ibid, p 62.

120 NSWLRC, Report 75 - Defamation, September 1995, p 174.

Anmerkungen

Art und Umfang der Übernahme sind ungekennzeichnet. Die Quelle wird nur für den letzten Absatz angeführt, der einen anderen Zusammenhang einleitet. Siehe http://de.vroniplag.wikia.com/wiki/Wy/Fragment_103_11

Übrigens hat Wy die Punkte, die er hier wiedergibt, bereits in einer Fußnote auf der vorangegangenen Seite wörtlich aufgelistet und wiederholt sich somit.

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(Graf Isolan) Agrippina1

[35.] Wy/Fragment 123 01 - Diskussion
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[The nub of the Appellants’ claim is that s 2(1) of the 1911 Act could not be amended without the formal consent of the House of Lords; that the bypassing] procedure could not be used to amend itself. The Appellants chiefly rested their argument on the claim that the 1911 Act merely delegated power to the House of Commons that would ordinarily be shared by both Houses. If that were the case, they argued, the House of Commons would be unable to use the powers granted by the 1911 Act to expand them, unless such authority was explicitly granted.370

In the event, both the Court of Appeal and the House of Lords ruled that the 1949 amending Act and therefore the Hunting Act 2004 were valid. In arriving at this decision the Court of Appeal, in a unanimous judgment delivered by Lord Woolf, held that the case turned on more than statutory interpretation and that regard should be had to the parliamentary debates to ascertain the meaning of s 2(1) of the Parliament Act 1911 and ‘subsequent understanding of Parliament as to the nature of the constitutional change effected’ by the Act.371 As to the threshold question of justiciability, the Court of Appeal held that this was a rare occasion when it was appropriate for the courts to rule on the validity of legislation that had received the Royal Assent, on grounds that the courts were ‘seeking to assist Parliament and the public by clarifying the legal position when such clarification is obviously necessary’. Further explaining the Court’s modus operandi, Lord Woolf stated:

While we refer [sic] what has happened in debates in Parliament concerning the issue before us, we will not be adjudicating upon the propriety of what occurred in Parliament.372


370 M Plaxton, The Concept of Legislation: Jackson v Her Majesty’s Attorney General, Modern Law Review, Vol. 69, 2006.

371 [2005] QB 579 at para. 77.

372 [2005] QB 579 at para. 13.

[The nub of the Appellants’ claim is that s 2(1) of the 1911 Act could not be

amended without the formal consent of the House of Lords; that the bypassing] procedure could not be used to amend itself. The Appellants chiefly rested their argument on the claim that the 1911 Act merely delegated power to the House of Commons that would ordinarily be shared by both Houses. If that were the case, they argued, the House of Commons would be unable to use the powers granted by the 1911 Act to expand them, unless such authority was explicitly granted. 260

In the event, both the Court of Appeal and the House of Lords ruled that the 1949 amending Act and therefore the Hunting Act 2004 were valid. In arriving at this decision the Court of Appeal, in a unanimous judgment delivered by Lord Woolf, held that the case turned on more than statutory interpretation and that regard should be had to the parliamentary debates to ascertain the meaning of s 2(1) of the Parliament Act 1911 and ‘subsequent understanding of Parliament as to the nature of the constitutional change effected’ by the Act.261 As to the threshold question of justiciability, the Court of Appeal held that this was a rare occasion when it was appropriate for the courts to rule on the validity of legislation that had received the Royal Assent, on grounds that the courts were ‘seeking to assist Parliament and the public by clarifying the legal position when such clarification is obviously necessary’. Further explaining the Court’s modus operandi, Lord Woolf stated: [...]

While we will refer to what has happened in debates in Parliament concerning the issue before us, we will not be adjudicating upon the propriety of what occurred in Parliament.262

260 M Plaxton, ‘The concept of legislation: Jackson v Her Majesty’s Attorney General’ (2006) 69(2) Modern Law Review 249 at 250.

261 [2005] QB 579 at para 77.

262 [2005] QB 579 at para 13.

Anmerkungen

Die Kopie setzt sich fort.

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[36.] Wy/Fragment 122 01 - Diskussion
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[In the case of legislation…which provides that presentation of a Bill [for the

royal assent] ‘shall not be lawful’ unless particular circumstances have been satisfied, the Court has jurisdiction to intervene in order to make a declaration of the kind sought, after the deliberative process in the Houses of Parliament has] been completed, but before the Bill is presented to the Governor for Royal Assent.365

It was further held that the Court should, as a matter of discretion, exercise its jurisdiction. On appealing to the High Court the question of justiciability was not considered. Rather, it was the validity of the manner and form provision that was the point at issue.366

This area of the law was again reviewed by the UK Court of Appeal367 and subsequently, if less extensively, by the House of Lords in R (Jackson) v. Attorney General368 in which supporters of fox hunting argued that the Hunting Act 2004 was not a valid Act, on the ground that the 1949 amendments to the Parliament Act 1911 were invalid and the procedures used to pass the Hunting Act were also invalid. The 2004 legislation banning fox hunting was passed without the consent of the House of Lords, pursuant to s 2 of the Parliament Act 1911, as amended in 1949 when the period before the Lords’ consent could be dispensed with was reduced by a year. As amended, the procedure only required the passage and rejection of a Bill in two successive sessions (instead of three) over a period of one year (instead of two).369 As explained by Michael Plaxton:

The nub of the Appellants’ claim is that s 2(1) of the 1911 Act could not be amended without the formal consent of the House of Lords; that the bypassing [procedure could not be used to amend itself.]


365 [2002] 26 WAR 201, p.160.

366 Attorney General (WA) v. Marquet (2003) 217 CLR 545.

367 Regina (Jackson and others) v. Attorney General [2005] QB 579.

368 [2005] 3 WLR 733.

369 A Twomey, Implied Limitations on Legislative Power in the United Kingdom, Australian Law Journal, Vol. 80, 2006.

In the case of legislation…which provides that presentation of a Bill [for the royal

assent] ‘shall not be lawful’ unless particular circumstances have been satisfied, the Court has jurisdiction to intervene in order to make a declaration of the kind sought, after the deliberative process in the Houses of Parliament has been completed, but before the Bill is presented to the Governor for Royal Assent. 255

It was further held that the Court should, as a matter of discretion, exercise its jurisdiction. On appeal to the High Court the question of justiciability was not considered. Rather, it was the validity of the manner and form provision that was the point at issue.256

This area of the law was again reviewed by the UK Court of Appeal257 and subsequently, if less extensively, by the House of Lords in R (Jackson) v Attorney General258 in which supporters of fox hunting argued that the Hunting Act 2004 was not a valid Act, on the ground that the 1949 amendments to the Parliament Act 1911 were invalid and the procedures used to pass the Hunting Act were also invalid. The 2004 legislation banning fox hunting was passed without the consent of the House of Lords, pursuant to s 2 of the Parliament Act 1911, as amended in 1949 when the period before the Lords’ consent could be dispensed with was reduced by a year. As amended, the procedure only required the passage and rejection of a Bill in two successive sessions (instead of three) over a period of one year (instead of two).259

As explained by Michael Plaxton:

The nub of the Appellants’ claim is that s 2(1) of the 1911 Act could not be amended without the formal consent of the House of Lords; that the bypassing [procedure could not be used to amend itself.]


255 [2002] 26 WAR 201 at 160.

256 Attorney General (WA) v Marquet (2003) 217 CLR 545.

257 Regina (Jackson and others) v Attorney General [2005] QB 579.

258 [2005] 3 WLR 733.

259 A Twomey, ‘Implied limitations on legislative power in the United Kingdom’ (2006) 80 Australian Law Journal 40.

Anmerkungen

Identisch.

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[37.] Wy/Fragment 124 01 - Diskussion
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Whether that argument would have applied if the Court of Appeal had found the 1949 amending Act invalid is another matter. For its part, the House of Lords upheld the validity of that legislation on very different grounds. In doing so, it avoided the potential pitfalls the Court of Appeal might have set for itself in respect to the review of parliamentary proceedings. For the House of Lords, judicial review was held to be constitutionally legitimate in this instance, since the courts were not investigating the internal workings of Parliament but were determining whether the 1949 and 2004 Acts were enacted law.373

On this issue the court’s jurisdiction cannot be doubted. This question of statutory interpretation is properly cognizable by a court of law even though it relates to the legislative process. Statutes create laws. [sic] The proper interpretation of a statute is a matter for the courts, not Parliament. This principle is as fundamental in this country’s constitution as the principle that Parliament has exclusive cognizance (jurisdiction) over its own affairs. In essence, the case was reducible to a question of statutory interpretation, about which Lord Nicholls of Birkenhead stated: 374

That s 2(2) of the 1911 Act, providing for the Speaker to certify that the requirements of the Act had been duly complied with, was not in dispute. At issue was s 2(1) of the 1911 Act which laid down the circumstances in which, save for stated exceptions, ‘any public Bill’ could be enacted without the consent of the House of Lords. The term ‘any’ was given a broad meaning and it was held to refer in this context to primary, not secondary, legislation.


373 [2005] 3 WLR 733 at para. 27 (Lord Bingham of Cornhill).

374 [2005] 3 WLR 733 at para. 51.

Whether that argument would have applied if the Court of Appeal had found the 1949 amending Act invalid is another matter. For its part, the House of Lords upheld the validity of that legislation on very different grounds. In doing so, it avoided the potential pitfalls the Court of Appeal might have set for itself in respect to the review of parliamentary proceedings. For the House of Lords, judicial review was held to be constitutionally legitimate in this instance, since the courts were not investigating the internal workings of Parliament but were determining whether the 1949 and 2004 Acts were enacted law.263 In essence, the case was reducible to a question of statutory interpretation, about which Lord Nicholls of Birkenhead stated:
On this issue the court’s jurisdiction cannot be doubted. This question of statutory interpretation is properly cognisable by a court of law even though it relates to the legislative process. Statutes create law. The proper interpretation of a statute is a matter for the courts, not Parliament. This principle is as fundamental in this country’s constitution as the principle that Parliament has exclusive cognisance (jurisdiction) over its own affairs.264

That s 2(2) of the 1911 Act, providing for the Speaker to certify that the requirements of the Act had been duly complied with, was not in dispute. At issue was s 2(1) of the 1911 Act which laid down the circumstances in which, save for stated exceptions, ‘any public Bill’ could be enacted without the consent of the House of Lords. The term ‘any’ was given a broad meaning and it was held to refer in this context to primary, not secondary, legislation.


263 [2005] 3 WLR 733 at para 27 (Lord Bingham of Cornhill).

264 [2005] 3 WLR 733 at para 51.

Anmerkungen

Identisch, bis auf 3 Buchstaben.

Sichter
(WiseWoman) Singulus

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[The Queensland Supreme Court agreed with the Speaker on the first] “procedural” argument, thereby confirming that the report was a parliamentary proceeding. However, it did not accept the ‘substantive’ argument, concluding that the Court had jurisdiction to restrain unlawful disclosure of a confidential CJC report in circumstances where the CJC had a statutory right under s 26(6) of the Criminal Justice Act 1989 (Qld)320 to protect against disclosure of such reports.

In Corrigan v PCJC321 the issue was whether a decision of a statutory parliamentary committee – the Parliamentary Criminal Justice Committee (PCJC) – was reviewable by the courts. A person had complained to the PCJC about the Criminal Justice Commission (CJC) and requested that the PCJC refer the matter to the Parliamentary Criminal Justice Commissioner (the Parliamentary Commissioner) for investigation. It was the PCJC’s decision not to refer the matter for investigation that the Supreme Court was asked to review. While recognising a distinction between ‘parliamentary’ and ‘executive’ functions of the committee, Dutney J ruled that the ‘act’ in question was of a parliamentary nature. He could ‘see no reason to distinguish the PCJC from any other committee of the Legislative Assembly merely because it is set up under statute, at least in areas of internal decision making where there is no allegation of breach of any statutory duty or prohibition’.

In Criminal Justice Commission v Parliamentary Criminal Justice Commissioner 322 the question was whether a report of the Parliamentary Commissioner constituted a ‘proceeding in Parliament’.


320 The Criminal Justice Act 1989 (Qld), Article 26, Section 6, No person shall publish, furnish or deliver a report of the commission, otherwise than is prescribed by this section, unless the report has been printed by order of the Legislative Assembly or is deemed to have been so printed.

321 [2001] 2 Qd R 23.

322 [2002] 2 Qd R 8.

The Queensland Supreme Court agreed with the Speaker on the first ‘procedural’ argument, thereby confirming that the report was a parliamentary proceeding. However, it did not accept the ‘substantive’ argument, concluding that the Court had jurisdiction to restrain unlawful disclosure of a confidential CJC report in circumstances where the CJC had a statutory right under s 26(6) of the Criminal Justice Act 1989 (Qld) to protect against disclosure of such reports.

• In Corrigan v PCJC219 the issue was whether a decision of a statutory parliamentary committee – the Parliamentary Criminal Justice Committee (PCJC) – was reviewable by the courts. A person had complained to the PCJC about the Criminal Justice Commission (CJC) and requested that the PCJC refer the matter to the Parliamentary Criminal Justice Commissioner (the Parliamentary Commissioner) for investigation. It was the PCJC’s decision not to refer the matter for investigation that the Supreme Court was asked to review. While recognising a distinction between ‘parliamentary’ and ‘executive’ functions of the committee,220 Dutney J ruled that the ‘act’ in question was of a parliamentary nature. He could ‘see no reason to distinguish the PCJC from any other committee of the Legislative Assembly merely because it is set up under statute, at least in areas of internal decision making where there is no allegation of breach of any statutory duty or prohibition’.221

• In Criminal Justice Commission v Parliamentary Criminal Justice Commissioner222 the question was whether a report of the Parliamentary Commissioner constituted a ‘proceeding in Parliament’.


219 [2001] 2 Qd R 23.

220 [2001] 2 Qd R 23 at 24. This followed the comments on Pincus JA in Criminal Justice Commission v Nationwide News Pty Ltd (at 457). Dutney J suggested that the committee’s ‘executive’ functions might include ‘participating the in the constitution of the CJC and, possibly, the role of issuing guidelines and directions to the CJC as provided under the Act’’.

221 [2001] 2 Qd R 23 at 25.

222 [2002] 2 Qd R 8.

Anmerkungen

Kein Hinweis auf eine Übernahme. Auf die Quelle wird vor dieser Seite zuletzt auf Seite 103 und danach erst auf Seite 107 hingewiesen.

Sichter
(Graf Isolan) Agrippina1

[39.] Wy/Fragment 121 01 - Diskussion
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[These include considerations arising from the separation of powers that require a policy of non-] intervention, added to considerations arising from Article 9 that preclude judicial questioning of parliamentary proceedings. Added to this, in Criminal Justice Commission v. Nationwide News Pty Ltd, 362 Davies JA observed that the reluctance of the courts to intervene in the legislative process stems from “the mutual respect which each branch of government should accord the performance of its functions by the other”. Likewise, British Railway Board v Pickin is authority for the proposition that a court is barred by the principle of comity from investigating the manner in which Parliament exercises its legislative function.363

But there are some cases where the courts have intervened in the parliamentary process. In 2002 the Supreme Court of Western Australia in Marquet v. A-G (WA) undertook review of this area of the law. A manner and form provision was at issue in that case and declarations had been sought from the Clerk of the Parliaments whether it would be lawful for him to present two Bills for the Governor’s assent that had not complied with the absolute majority requirements.364 On the question of jurisdiction, Steytler and Parker JJ concluded (the other members of the Court agreeing):

In the case of legislation…which provides that presentation of a Bill [for the royal assent] ‘shall not be lawful’ unless particular circumstances have been satisfied, the Court has jurisdiction to intervene in order to make a declaration of the kind sought, after the deliberative process in the Houses of Parliament has [been completed, but before the Bill is presented to the Governor for Royal Assent.365]


362 [1996] 2 QdR 444, p.460.

363 [1974] AC 765.

364 See, E.Campbell, Parliamentary Privilege in Australia, pp. 116-118; P. Johnston, Method or Madness: Constitutional Perturbations and Marquet’s case, Constitutional Law and Policy Review, August, 2004.

[365 [2002] 26 WAR 201, p.160.]

These include considerations arising from the separation of powers that require a policy of non-intervention, added to considerations arising from Article 9 that preclude judicial questioning of parliamentary proceedings. Added to this, in Criminal Justice Commission v Nationwide News Pty Ltd 248 Davies JA observed that the reluctance of the courts to intervene in the legislative process stems from ‘the mutual respect which each branch of government should accord the performance of its functions by the other’. Likewise, British Railway Board v Pickin249 is authority for the proposition that a court is barred by the principle of comity from investigating the manner in which Parliament exercises its legislative function. [...]

[S. 68]

where the courts have intervened in the parliamentary process [...]

In 2002 review of this area of the law was undertaken by the Supreme Court of Western Australia in Marquet v A-G (WA). A manner and form provision was at issue in that case and declarations had been sought from the Clerk of the Parliaments whether it would be lawful for him to present two Bills for the Governor’s assent that had not complied with the

[S. 69]

absolute majority requirements. 254 On the question of jurisdiction, Steytler and Parker JJ concluded (the other members of the Court agreeing):

In the case of legislation...which provides that presentation of a Bill [for the royal assent] ‘shall not be lawful’ unless particular circumstances have been satisfied, the Court has jurisdiction to intervene in order to make a declaration of the kind sought, after the deliberative process in the Houses of Parliament has been completed, but before the Bill is presented to the Governor for Royal Assent.255


248 [1996] 2 QdR 444 at 460.

254 For a detailed background to and commentary on the case see – Campbell, Parliamentary Privilege, n 147, pp 116-118; P Johnston, ‘Method or madness: constitutional perturbations and Marquet’s case’ (August 2004) 7(2)Constitutional Law and Policy Review 25.

255 [2002] 26 WAR 201 at 160.

Anmerkungen

Die ganzseitige Übernahme begann auf S. 120 und setzt sich mit kleinsten Veränderungen fort.

Sichter
(WiseWoman) Singulus

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It is, however, in other country, notably the UK, that the case law has developed. At issue are two related questions: Does the disputed evidence constitute parliamentary proceedings? If the proceedings are internal to Parliament, do they lie outside the jurisdiction of the courts?316

In the UK case of R v Parliamentary Commissioner for Standards, ex parte Al Fayed317 the Court of Appeal refused an application for judicial review of the report of the Parliamentary Commissioner which had rejected Al Fayed’s claim that an MP (Neil Hamilton) had received a corrupt payment. It was confirmed that the Commissioner’s inquiry and report were ‘proceedings in Parliament’. It is therefore the House of Commons, not the courts, which are responsible for the activities of the Parliamentary Commissioner for Standards. A contrast was drawn [in this respect between the Parliamentary Commissioner for Standards and the Parliamentary Commissioner for Administration (the Ombudsman).]



316 Gareth Griffith, Parliamentary Privilege: Major Developments and Current Issues, [4].

317 [1998] 1 ALL ER 93.

It is, however, in other jurisdictions, notably the UK and Queensland, that the case law has

developed. At issue are two related questions: does the disputed evidence constitute parliamentary proceedings? if the proceedings are internal to Parliament do they lie outside the jurisdiction of the courts?

In the UK case of R v Parliamentary Commissioner for Standards, ex parte Al Fayed213 the Court of Appeal refused an application for judicial review of the report of the Parliamentary Commissioner which had rejected Al Fayed’s claim that an MP (Neil Hamilton) had received a corrupt payment. It was confirmed that the Commissioner’s inquiry and report were ‘proceedings in Parliament’. It is therefore the House of Commons, not the courts, that are responsible for the activities of the Parliamentary Commissioner for [S. 60] Standards. A contrast was drawn in this respect between the Parliamentary Commissioner for Standards and the Parliamentary Commissioner for Administration (the Ombudsman).


213 [1998] 1 ALL ER 93.

Anmerkungen

Art und Umfang der Übernahme bleiben ungekennzeichnet.

Sichter
(Graf Isolan) Singulus

[41.] Wy/Fragment 104 01 - Diskussion
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[A contrast was drawn] in this respect between the Parliamentary Commissioner for Standards and the Parliamentary Commissioner for Administration (the Ombudsman).

The former is one of the means by which the Select Committee of Standards and Privileges carries out its functions, which are accepted to be part of the proceedings of the House, whereas the Ombudsman is concerned with the proper functioning of the public service outside Parliament.318

In Australia there are also some of cases of dealing with the meaning of the term of ‘parliamentary proceedings’. For example, Between [sic] 1994 and 2001 at least three Queensland cases dealt with the meaning of the term ‘parliamentary proceedings’ in relation to decisions, investigations or reports of the former PCJC (Parliamentary Criminal Justice Committee, the Parliamentary Commissioner and the CJC(The Criminal Justice Commission).

In Criminal Justice Commission (CJC) v. Nationwide News Pty Ltd319 an injunction was sought to restrain publication by a newspaper of a confidential report the independent commission had prepared for the Parliamentary Criminal Justice Committee. The Speaker, who intervened in the case, raised two questions: a ‘procedural’ question as to whether the process of arriving at a conclusion in the case involved a breach of the prohibition in Article 9 of the Bill of Rights against impeaching or questioning proceedings in Parliament; and a ‘substantive’ question as to whether the matter was one within the exclusive jurisdiction of Parliament and that the unauthorised publication of the report was for the Assembly to deal with.


318 That both the inquiry and report of the Parliamentary Commissioner for Standards constituted parliamentary proceedings was confirmed by the House of Lords in Hamilton v Al Fayed [2001] 1 AC 395.

319 [1996] 2 Qd R 444.

[Seite 60]

A contrast was drawn in this respect between the Parliamentary Commissioner for Standards and the Parliamentary Commissioner for Administration (the Ombudsman). The former is one of the means by which the Select Committee of Standards and Privileges carries out its functions, which are accepted to be part of the proceedings of the House, whereas the Ombudsman is concerned with the proper functioning of the public service outside Parliament.214

[...]

Between 1994 and 2001 at least three Queensland cases dealt with the meaning of the term ‘parliamentary proceedings’ in relation to decisions, investigations or reports of the former PCJC, the Parliamentary Commissioner and the CJC.216

• In Criminal Justice Commission v Nationwide News Pty Ltd217 an injunction was sought to restrain publication by a newspaper of a confidential report the independent commission had prepared for the Parliamentary Criminal Justice Committee. The Speaker, who intervened in the case, raised two questions: a ‘procedural’218 question as to whether the process of arriving at a conclusion in the case involved a breach of the prohibition in Article 9 of the Bill of Rights against impeaching or questioning proceedings in Parliament; and a ‘substantive’ question as to whether the matter was one within the exclusive jurisdiction of Parliament and

[Seite 61]

that the unauthorised publication of the report was for the Assembly to deal with.


214 That both the inquiry and report of the Parliamentary Commissioner for Standards constituted parliamentary proceedings was confirmed by the House of Lords in Hamilton v Al Fayed [2001] 1 AC 395 – as discussed in section [5.4.2] of this paper.

216 N Laurie, ‘Parliamentary committees, commissioners, independent commissions – parliamentary privilege and judicial review of decisions, investigations or reports’ (Spring 2002) 17(2) Australasian Parliamentary Review 212.

217 [1996] 2 Qd R 444.

218 [1996] 2 Qd R 444 at 455 (Pincus JA).

Anmerkungen

Kein Hinweis auf eine Übernahme. Man beachte die unkorrigierte Großschreibung von "Between", die einzig der Übernahme geschuldet scheint.

Sichter
(Graf Isolan) Singulus

[42.] Wy/Fragment 028 15 - Diskussion
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4 The Justification of Parliamentary Privilege

4.1 The Purpose of Parliamentary Privilege

Parliamentary privilege refers to the bundle of powers, rights and immunities ‘necessary’ for the effective performance of parliamentary functions. It is necessary “to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business.”101


101 Canada (House of Commons)v. Vaid[2005]1 SCR 667, at para. 41.

2. PARLIAMENTARY PRIVILEGE

2.1 Purpose

[...] Parliamentary privilege refers therefore to the bundle of powers, rights and immunities ‘necessary’ for the effective performance of parliamentary functions. It is ‘necessary’

to protect legislators in the discharge of their legislative and deliberative functions, and the legislative assembly’s work in holding the government to account for the conduct of the country’s business.1


1 Canada (House of Commons) v Vaid [2005] 1 SCR 667 at para 41.

Anmerkungen

Kein Hinweis auf eine Übernahme.

Sichter
(Graf Isolan) Singulus

[43.] Wy/Fragment 048 01 - Diskussion
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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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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

Ein Quellenverweis fehlt.

Sichter
(Hindemith), SleepyHollow02

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We have no doubt that if it is understood by members of Parliament or persons appearing before a parliamentary committee that they may be called to account for their parliamentary statements at a later time, they are more likely than not to speak honestly, although no less freely. To suggest otherwise is to equate the right to speak freely in Parliament with the right to be disingenuous. Such a proposition is fundamentally inconsistent with the right of all citizens to be governed in an open and accountable manner”.494

12.3.6 Procedural Fairness

There is no mechanism for ensuring that witnesses before parliamentary committees generally will be protected by the requirements of procedural fairness. In 1991 the NSW Attorney General’s Discussion Paper commented that this had not proved to be a controversial matter in this jurisdiction. But at the same time it said that “Procedural questions such as whether evidence should be heard in-camera, the degree to which counsel should be involved, and the admissibility of questions are currently left to the Committees themselves to determine”. The Discussion Paper went on to say that it is “essential that persons summoned to give evidence before a Committee be accorded procedural fairness”.495 Likewise, in a New Zealand context Sir Geoffrey Palmer argued for a legislative provision “explicitly requiring select committees of Parliament to follow the rules of natural justice”.496


494 Western Australia, Report of the Royal Commission into Commercial Activities of Government and other matters, 1992, Part II, para. 5, 8, 6.

495 NSW Attorney General’s Department, Discussion Paper-Parliamentary Privilege in NSW, 1991, p.34.

496 G. Palmer, Parliament and privilege: Whose Justice?, New Zealand law Journal, September, 1994.

[Seite 46]

We have no doubt that if it is understood by members of Parliament or persons appearing before a parliamentary committee that they may be called to account for their parliamentary statements at a later time, they are more likely than not to speak honestly, although no less freely. To suggest otherwise is to equate the right to speak freely in Parliament with the right to be disingenuous. Such a proposition is fundamentally inconsistent with the right of all citizens to be governed in an open and accountable manner’.185

(vi) procedural fairness: there is no mechanism for ensuring that witnesses before parliamentary committees generally will be protected by the requirements of procedural fairness. In 1991 the NSW Attorney General’s Discussion Paper commented that this had not proved to be a controversial matter in this

[Seite 47]

jurisdiction. But at the same time it said that ‘Procedural questions such as whether evidence should be heard in-camera, the degree to which counsel should be involved, and the admissibility of questions are currently left to the Committees themselves to determine’. The Discussion Paper went on to say that it is ‘essential that persons summoned to give evidence before a Committee be accorded procedural fairness’.186 Likewise, in a New Zealand context Sir Geoffrey Palmer argued for a legislative provision ‘explicitly requiring select committees of Parliament to follow the rules of natural justice’.187


185 Western Australia, Report of the Royal Commission into Commercial Activities of Government and other matters, 1992, Part II, para 5.8.6.

186 NSW Attorney General’s Department, Discussion Paper - Parliamentary Privilege in NSW, 1991, p 34.

187 G Palmer, op cit, p 329.

Anmerkungen

Kein Hinweis auf eine Übernahme (außer vielleicht FN 486 auf Seite 156).

Sichter
(Graf Isolan), Hindemith

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He observed: “Freedom of speech in parliament is not now, nor was it in 1901 or even in 1688 so sensitive a flower that, although the accuracy and the honesty of what is said by members of parliament (or witnesses before parliamentary committees) can be severely challenged in the media or in public, it cannot be challenged in the same way in the courts of law”.491 As noted, for Hunt J only when legal consequences are to be visited on Members or witnesses should parliamentary privilege and be used to prevent a court questioning what they said or did in Parliament. In support of this approach and contrary to the decision in Prebble, Geoffrey Marshall said the “formula in the Murphy case reflects a more rational attitude to parliamentary privilege as well as to the interests of justice and free speech”.492 He went on to observe: “The freedom of debate is sufficiently protected if members enjoy absolute privilege from criminal and civil actions directed at what they say in the course of debate or proceedings in the House. There is no need to inflate claims of privilege beyond that”.493

12.3.5 Facilitating a Regard for Truth

Witnesses to a parliamentary committee and MPs are more likely to tell the truth if they know there is a prospect that what they say may be challenged elsewhere, than if they know they are protected from such challenge. The ‘WA Inc’ Royal Commission commented in this regard: “Statements made in parliament should not be treated, for purposes associated with court and like proceedings, as if they were never uttered. To provide such immunity is likely to encourage, or at least facilitate, a disregard for the truth by those to whom the protection is given.


491 (1986) 5 NSWLR 18, p.34.

492 G.Marshall, Impugning parliamentary privilege, Public Law, Winter, 1994.

493 Id.

He observed: ‘Freedom of speech in parliament is not now, nor was it in 1901 or even in 1688 so sensitive a flower that, although the accuracy and the honesty of what is said by members of parliament (or witnesses before parliamentary committees) can be severely challenged in the media or in public, it cannot be challenged in the same way in the courts of law’.182 As noted, for Hunt J only when legal consequences are to be visited on Members or witnesses should parliamentary privilege be used to prevent a court questioning what they said or did in Parliament. In support of this approach and contrary to the decision in Prebble, Geoffrey Marshall said the ‘formula in the Murphy case reflects a more rational attitude to parliamentary privilege as well as to the interests of justice and free speech’.183 He went on to observe: ‘The freedom of debate is sufficiently protected if members enjoy absolute privilege from criminal and civil actions directed at what they say in the course of debate or proceedings in the House. There is no need to inflate claims of privilege beyond that’.184

(v) facilitating a regard for truth: witnesses to a parliamentary committee and MPs are more likely to tell the truth if they know there is a prospect that what they say may be challenged elsewhere, than if they know they are protected from such challenge. The ‘WA Inc’ Royal Commission commented in this regard: ‘Statements made in parliament should not be treated, for purposes associated with court and like proceedings, as if they were never uttered. To provide such immunity is likely to encourage, or at least facilitate, a disregard for the truth by those to whom the protection is given.


182 (1986) 5 NSWLR 18 at 34.

183 G Marshall, ‘Impugning parliamentary privilege’ (Winter 1994) Public Law 509 at 512.

184 Ibid at 513.

Anmerkungen

Kein Hinweis auf eine Übernahme (abgesehen vielleicht von FN 486 auf Seite 156).

Sichter
(Graf Isolan), Hindemith

[47.] Wy/Fragment 157 01 - Diskussion
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[Various examples of the alleged abuse] of privilege can be cited in this context but the general point to make is that the privilege of freedom of speech in Parliament can and does come into conflict with the principle that “every person is entitled to access to the Courts...to obtain redress for alleged wrongs”.488 Thus, a citizen defamed by an MP may be denied a remedy by the absolute privilege afforded to what is said in Parliament under Article 9. The reports of Parliamentary Committees are protected by the same absolute privilege and the point is made that potential exists for such Committees

“to engage in activities which are oppressive or which may do irreparable harm to individuals”.489

12.3.3 Contrary to Democratic Values

According to the ‘WA Inc’ Royal Commission, the present construction of what is meant by freedom of speech in Parliament under Article 9 is “fundamentally inconsistent with the right of all citizens to subject their parliamentary representatives to scrutiny and to be governed in an open and accountable manner”.490

12.3.4 Inflated and Unhistorical Interpretation of Parliamentary Privilege

The present Construction of Article 9 (Bill of rights, 1689) makes inflated claims for parliamentary privilege which owes little or nothing to its original purpose and intent. Again, this was the view of Hunt J in Murphy’s case where his Honour proposed a “narrower interpretation” consistent with “both the mischief which the Bill of Rights was enacted to remedy and the history of what led to the [enactment of Art. 9.”]


488 R.Best, Freedom of Speech in Parliament: Constitutional Safeguard or Sword of Oppression?, VUWLR, Vol. 24, 1994.

489 Explanatory Note, Parliamentary Privileges Bill 1994 (NZ), p.28.

490 Western Australia, Report of the Royal commission into Commercial Activities of Government and other matters, 1992, Part II, para. 5,8,7.

[Seite 45]

Various examples of the alleged abuse of privilege can be cited in this context but the general point to make is that the privilege of freedom of speech in Parliament can and does come into conflict with the principle that ‘every person is entitled to access to the Courts...to obtain redress for alleged wrongs’.177 Thus, a citizen defamed by an MP may be denied a remedy by the absolute privilege afforded to what is said in Parliament under Article 9. The reports of Parliamentary Committees are protected by the same absolute privilege and the point is made that potential exists for such Committees ‘to engage in activities which are oppressive or which may do irreparable harm to individuals’.178

[...]

(iii) contrary to democratic values: according to the ‘WA Inc’ Royal Commission, the present construction of what is meant by freedom of speech in Parliament under Article 9 is ‘fundamentally inconsistent with the right of all citizens to subject their parliamentary representatives to scrutiny, and to be governed in an open and accountable manner’.181

(iv) inflated and unhistorical interpretation of Article 9: the present construction of Article 9 makes inflated claims for parliamentary privilege which owe little or nothing to its original purpose and intent. Again, this was the view of Hunt J in Murphy’s case where his Honour proposed a ‘narrower interpretation’ consistent [with ‘both the mischief which the Bill of Rights was enacted to remedy and the history of what led to the enactment of art. 9'.]



177 R Best, ‘Freedom of speech in Parliament: constitutional safeguard or sword of oppression?’ (1994) 24 VUWLR 91 at 95. Cited is a comment from McKay J in TVNZ v Prebble [1993] 3 NZLR 513.

178 Explanatory Note, Parliamentary Privileges Bill 1994 (NZ), p 28.

181 Western Australia, Report of the Royal commission into Commercial Activities of Government and other matters, 1992, Part II, para 5.8.7.

Anmerkungen

Kein Hinweis auf eine Übernahme außer der Fußnote 486 auf der Vorseite, die sich möglicherweise auch auf diesen Text hier beziehen könnte.

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(Graf Isolan), Hindemith

[48.] Wy/Fragment 156 10 - Diskussion
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12.3.1 Parliament Privilege is Peculiar, Arbitrary and Obscure

According to Sir Geoffrey Palmer, most people know nothing about parliamentary privilege and “The law relating to it is ancient, obscure and potentially draconian”. He notes that it is, in the words of the noted English constitutional lawyer, O Hood Phillips, “exceptional, peculiar and discretionary”.487

12.3.2 Potential for Injustice

Parliamentary privilege has the capacity to cause substantial injustice to individuals who have no means of redress. Various examples of the alleged abuse [of privilege can be cited in this context but the general point to make is that the privilege of freedom of speech in Parliament can and does come into conflict with the principle that “every person is entitled to access to the Courts...to obtain redress for alleged wrongs”.488]


487 G.Palmer, Parliament and Privilege: Whose Justice?, New Zealand Law Journal, September, 1994.

[488 R.Best, Freedom of Speech in Parliament: Constitutional Safeguard or Sword of Oppression?, VUWLR, Vol. 24, 1994.]

[Seite 44]

Following on from this, the case for the reform of parliamentary privilege includes the following arguments:

(i) peculiar, arbitrary and obscure: according to Sir Geoffrey Palmer, most people know nothing about parliamentary privilege and ‘The law relating to it is ancient, obscure and potentially draconian’. He notes that it is, in the words of the noted English constitutional lawyer, O Hood Phillips, ‘exceptional, peculiar and discretionary’.176

[Seite 45]

(ii) potential for injustice: parliamentary privilege has the capacity to cause substantial injustice to individuals who have no means of redress. Various examples of the alleged abuse of privilege can be cited in this context but the general point to make is that the privilege of freedom of speech in Parliament can and does come into conflict with the principle that ‘every person is entitled to access to the Courts...to obtain redress for alleged wrongs’.177



176 G Palmer, ‘Parliament and privilege: whose justice?’ (September 1994) New Zealand law Journal 325.


177 R Best, ‘Freedom of speech in Parliament: constitutional safeguard or sword of oppression?’ (1994) 24 VUWLR 91 at 95. Cited is a comment from McKay J in TVNZ v Prebble [1993] 3 NZLR 513.

Anmerkungen

Die Übernahme wird vorher in FN 486 angedeutet, die langen wörtlichen Übernahmen sind damit aber natürlich nicht abgedeckt.

Sichter
(Graf Isolan), Hindemith

[49.] Wy/Fragment 005 01 - Diskussion
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[In Sri Lanka by act of parliament, in New Zealand by statute law, in] the Russian Federation by a federal law on the status of the Deputy of Council of Federation and the status of Deputy of the state Duma of the Federal Assembly of Russian Federation. In the United Kingdom and Canada, freedom of speech is not explicitly codified.11

11 Robert Myttenaere, Report of Parliamentary Privilege, adopted at the Moscow Session, September, 1998.

In Sri Lanka by Act of Parliament, New Zealand by statute law, in the Russian Federation by a federal law on the status of the Deputy of the Council of Federation and the

[Seite 103]

status of the Deputy of the State Duma of the Federal Assembly of the Russian Federation.

In the United Kingdom and Canada, freedom of speech is not explicitly codified.

Anmerkungen

Die Quelle ist angegeben, die wörtliche Übernahme aber nicht gekennzeichnet. Die Übernahme beginnt schon auf der Vorseite.

Sichter
(Hindemith) Singulus

[50.] Wy/Fragment 042 03 - Diskussion
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The concept of freedom of speech has been defined as the protection members of parliament enjoy from legal action resulting from an opinion expressed or vote cast. Thus defined, the concept of freedom of speech is known in all the countries which have collaborated in this study, even if important differences exist in the field of application.134

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

1. The concept of parliamentary privilege (freedom of speech) has been defined, for the purposes of the present study, as the protection members of parliament enjoy from legal action resulting from an opinion expressed or vote cast.

2. Thus defined, the concept of freedom of speech is known in all the countries which have collaborated in this study, even if important differences exist in the field of application (see below).

Anmerkungen

Die Quelle ist angegeben, die wörtlichen Übernahmen sind aber nicht gekennzeichnet.

Bemerkenswert, dass auch "in this study" mitübernommen wird.

Sichter
(Hindemith) Singulus

[51.] Wy/Fragment 044 16 - Diskussion
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The freedom of speech of Members in the House, in fact, is the essential pre-requisite for the efficient discharge of their parliamentary duties, in the absence of which, they may not be able to speak out their mind and express their views in the [House without any fear.] The freedom of speech of members

in the House, in fact, is the essential pre-requisite for the efficient discharge of their parliamentary duties, in the absence of which, they may not be able to speak out their mind and express their views in the House without any fear.

Anmerkungen

Kein Hinweis auf eine Übernahme. Die Übernahme setzt sich auf der folgenden Seite fort.

Sichter
(Graf Isolan) Singulus

[52.] Wy/Fragment 051 01 - Diskussion
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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

Die vorhandenen Quellenverweise verweisen auf die falsche Seite der Quelle. Unabhängig davon machen die Verweise nicht klar, dass die gesamte Seite wörtlich übernommen wurde.

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

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(Hindemith), SleepyHollow02

[53.] Wy/Fragment 050 01 - Diskussion
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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.

Sichter
(Hindemith), SleepyHollow02

[54.] 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.

Sichter
(Hindemith), SleepyHollow02

[55.] Wy/Fragment 049 01 - Diskussion
Bearbeitet: 13. September 2013, 08:11 Graf Isolan
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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

[56.] Wy/Fragment 057 01 - Diskussion
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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

Ein Verweis auf die eigentliche Quelle fehlt.

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[57.] Wy/Fragment 062 09 - Diskussion
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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.

Sichter
(Singulus), SleepyHollow02

[58.] Wy/Fragment 059 05 - Diskussion
Bearbeitet: 13. September 2013, 07:50 WiseWoman
Erstellt: 11. September 2013, 18:50 (Singulus)
BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, UNDP Initiative 2006, Wy

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6.2 The Scope of Potection191 [sic!]

6.2.1 Who is Protected

Freedom from arrest applies only to members of parliament. However, among the countries covered by the UNDP(TheUnited [sic!] Nations Development Programme) initiative, there is one important exception: Article 13 of the Law on the Status of Deputies in the Republic of Moldova stipulates that members of parliament are deemed to be exercising their functions throughout their mandate, and that any aggression against them is considered an insult (outrage) to be punished in accordance with the law. 192 The same applies to family members (husband, wife, children and parents) if such aggression seeks to exert pressure on the parliamentarian concerned in connection with the exercise of his/her mandate. [...]

6.2.2 Time Frame

The time frame during which freedom from arrest is valid is usually the same as in the case of freedom of speech with one crucial exception. Contrary to the privilege of freedom of speech, freedom from arrest is only afforded for the duration of the mandate. Once it has expired, members of parliament may [consequently be prosecuted for offences in respect of which parliament had not lifted immunity.]


191 See, Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, [5].

192 See, Robert Myttenaere, Moscow Session (September 1998), The Immunities of Members of Parliament [6].

5.1. _The scope of protection_

(a) Who is protected?

Inviolability applies only to members of parliament. However, among the countries covered by the UNDP initiative, there is one important exception: Article 13 of the Law on the Status of Deputies in the Republic of Moldova stipulates that members of parliament are deemed to be exercising their functions throughout their mandate, and that any aggression against them is considered an insult (outrage) to be punished in accordance with the law. The same applies to family members (husband, wife, children and parents) if such aggression seeks to exert pressure on the parliamentarian concerned in connection with the exercise of his/her mandate.

(b) Time frame The time frame during which inviolability is valid is usually the same as in the case of freedom of speech (see above 4.2.) with one crucial exception. Contrary to the privilege of freedom of speech, inviolability is only afforded for the duration of the mandate. Once it has expired, members of parliament may [consequently be prosecuted for offences in respect of which parliament had not lifted immunity.]

Anmerkungen

Art und Umfang der Übernahme bleiben ungekennzeichnet. FN 191 enthält die Quelle für die Übernahme. Nach einem eingeschobenen Satz über Deutschland setzt sich die Übernahme aus derselben Quelle fort.

Sichter
(Singulus), WiseWoman, Graf Isolan (Ergänzung)

[59.] Wy/Fragment 059 01 - Diskussion
Bearbeitet: 13. September 2013, 07:49 WiseWoman
Erstellt: 12. September 2013, 21:25 (Hindemith)
Fragment, Gesichtet, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Van der Hulst 2000, Wy

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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

Die Übernahme beginnt schon auf der Vorseite. Dort findet sich auch ein Verweis auf die Quelle, allerdings ohne ersichtlichen Bezug zu der hier dokumentierten Textstelle.

Sichter
(Hindemith), SleepyHollow02

[60.] Wy/Fragment 058 09 - Diskussion
Bearbeitet: 13. September 2013, 07:46 WiseWoman
Erstellt: 12. September 2013, 21:21 (Hindemith)
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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.

Sichter
(Hindemith), SleepyHollow02

[61.] Wy/Fragment 052 01 - Diskussion
Bearbeitet: 13. September 2013, 07:05 WiseWoman
Erstellt: 12. September 2013, 20:48 (Hindemith)
BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, Van der Hulst 2000, Wy

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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. [...]

Anmerkungen

Die angegebenen Quellenverweise machen nicht deutlich, dass die gesamte Seite fast wörtlich übernommen wurde. Auch verweisen sie allesamt auf die falsche Seite der Quelle.

Sichter
(Hindemith), SleepyHollow02

[62.] Wy/Fragment 036 19 - Diskussion
Bearbeitet: 13. September 2013, 07:02 WiseWoman
Erstellt: 12. September 2013, 15:55 (Hindemith)
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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

[63.] Wy/Fragment 096 01 - Diskussion
Bearbeitet: 13. September 2013, 07:00 WiseWoman
Erstellt: 11. September 2013, 19:59 (Hindemith)
BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, Van der Hulst 2000, Wy

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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

Die vorhandenen Quellenangaben machen nicht deutlich, dass die gesamte Seite wörtlich übernommen wurde. Insbesondere die eigenartiger Referenz in Van der Hulst wie m wird sinnlos übernommen.

Sichter
(Hindemith), SleepyHollow02

[64.] Wy/Fragment 095 01 - Diskussion
Bearbeitet: 13. September 2013, 06:54 WiseWoman
Erstellt: 11. September 2013, 16:39 (Hindemith)
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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.

Sichter
(Hindemith), SleepyHollow02

[65.] Wy/Fragment 155 01 - Diskussion
Bearbeitet: 12. September 2013, 19:17 WiseWoman
Erstellt: 10. September 2013, 20:11 (SleepyHollow02)
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[Internal parliamentary processes, such as practices for the protection of witnesses before] the Privileges Committee, take account of these requirements.481 Such issues have been given considerable attention in Canada since enactment of the Canadian Charter of Rights and Freedoms in 1982. The result has been that parliamentary privilege has been like other areas of the law in being subject to the provisions of the charter. 482 A point of broader significance, noted by Professor Lindell in respect of the Vaid case, is the tendency of the court to define the content of parliamentary privilege by reference to the degree of autonomy necessary for the performance of the functions entrusted to the Canadian Parliament as finally determined by the court and not just the Parliament. A scholarly discussion of the position in Canada, and one which takes account of international developments, has been published in The Table for 2007. In Australia to date only the ACT and Victoria have enacted human rights laws. Technically legislation in this area may or may not be drafted with reference to parliamentary activities. It would seem however that, as a minimum, a parliament which enacted such a law would feel some obligation to ensure that its own operations were at least consistent with any general standards that it established for the wider community.483

The development of the law in respect of the implied constitutional guarantee of freedom of political communication will be of interest, for example, in Australia including in respect of the Parliamentary Privileges Act 1987. Subsection 16(3),484 it has been argued, is in conflict with this freedom in so far as [it prevents the analysis of the conduct of elected politicians in the courts or impedes the discussion of the same matters by non-parliamentarians given the legal consequences that may result in defamation.485]


481 Id., pp.611, 667.

482 Robert Marleau and Camille Montpetit, House of Commons Procedure and Practice, pp.112 -13; See, Joseph Maingot, Parliamentary Privilege in Canada, 2nd ed, 1997, ch 14.

483 Bernard Wright, Patterns of Change-Parliamentary Privilege, http://www.aph.gov.au/HOUSE/ PUBS/occpub/privileges.pd. [sic]

484 Parliamentary Privileges Act 1987, Section16(3), [sic] In proceedings in any court or tribunal, it is not lawful for evidence to be tendered or received, questions asked or statements, submissions or comments made, concerning proceedings in Parliament, by way of, or for the purpose of: (a) questioning or relying on the truth, motive, intention or good faith of anything forming part of those proceedings in Parliament; (b) otherwise questioning or establishing the credibility, motive, intention or good faith of any person; or (c) drawing, or inviting the drawing of, inferences or conclusions wholly or partly from anything forming part of those proceedings in Parliament.

Internal parliamentary processes, such as practices for the protection of witnesses before the Privileges Committee, take account of these requirements93. Such issues have been given considerable attention in Canada since enactment of the Canadian Charter of Rights and Freedoms in 1982. The result has been that parliamentary privilege has been like other areas of the law in being subject to the provisions of the charter.94. A point of broader significance, noted by Professor Lindell in respect of the Vaid case, is the tendency of the court to define the content of parliamentary privilege by reference to the degree of autonomy necessary for the performance of the functions entrusted to the Canadian Parliament as finally determined by the court and not just the Parliament. A scholarly discussion of the position in Canada, and one which takes account of international developments, has been published in The Table for 200795. In Australia to date only the ACT and Victoria have enacted human rights laws. Technically legislation in this area may or may not be drafted with reference to parliamentary activities. It would seem however that, as a minimum, a parliament which enacted such a law would feel some obligation to ensure that its own operations were at least consistent with any general standards that it established for the wider community. The development of the law in respect of the implied constitutional guarantee of freedom of political communication will be of interest, including in respect of the Parliamentary Privileges Act 1987. Subsection 16(3), it has been argued, is in conflict with this freedom in so far as it prevents the analysis of the conduct of elected politicians in the courts or impedes the discussion of the same matters by non-parliamentarians given the legal consequences that may result in defamation96.

89 May, op cit, p 199; M Jack A. v the UK ‘The Table’ (2003), pp 35-40; ASGP, op cit, p 66.

90 ASGP, op cit, p 66.

91 See, for example Canada (House of Commons) v Vaid (2005) SCC 30 (Supreme Court of Canada, 20 May 2005).

92 McGee op cit, p 611.

93 Ibid, pp 611, 667.

94 Robert Marleau and Camille Montpetit House of Commons Procedure and Practice, pp 112 -13; Joseph Maingot, QC, Parliamentary Privilege in Canada (2nd ed), ch 14; and see Robert and Macneil, op cit.

95 Robert and Macneil, op cit. And see forthcoming paper by Nicholas MacDonald ‘Parliamentarians and National Security’, Canadian Parliamentary Review, Fall 2011. Mr MacDonald has made helpful comments on this paper.

96 Enid Campbell ‘Contempt of Parliament and the Implied Freedom of Political Communication’ (1999) 10 Public Law Review 196 and Parliamentary Privilege (2003), at 7, 64-5, and evidence by Professor Lindell to the UK Joint Committee HL 43 III, HC 214— 111 (1998-99) at 168-9 paras 21(ii) and 19.

Anmerkungen

Ein Satz wurde eingefügt, sonst praktisch wörtlich übernommen. Die Quelle ist, etwas misslungen angegeben, unter 483 genannt. Es gibt zwei Versionen von Wright online, bei der zweiten (Hochglanzbroschure) fehlen 95 und 96, aber der Fließtext enthält einen Satz mehr, der sich auch in der Dissertation findet. Daher ist dies wohl die vom Autor verwendete Quelle.

Sichter
(SleepyHollow02), (Hindemith), WiseWoman

[66.] Wy/Fragment 047 01 - Diskussion
Bearbeitet: 12. September 2013, 18:34 Graf Isolan
Erstellt: 12. September 2013, 17:11 (Hindemith)
BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, Van der Hulst 2000, Wy

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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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[67.] 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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[68.] 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

[69.] 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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[70.] Wy/Fragment 046 01 - Diskussion
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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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(Hindemith) Singulus

[71.] 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. ]

Anmerkungen

Die vorhandenen Quellenverweise machen nicht deutlich, dass die ganze Seite wörtlich übernommen wurde.

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

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(Hindemith), WiseWoman

[72.] Wy/Fragment 062 12 - Diskussion
Bearbeitet: 12. September 2013, 15:48 WiseWoman
Erstellt: 11. September 2013, 21:33 (Singulus)
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There are some exceptions, however, as certain countries make distinctions based on the seriousness of the offence. Thus, in Iraq and Rwanda the flagrante delicto rule (arrest without consent of the parliament) applies only if a member is caught in the commission of a felony, in Serbia and Montenegro and The former Yugoslav Republic of Macedonia, Timor-Leste only in the case of a crime punishable by over 5 years’ imprisonment, and in Argentina only if the parliamentarian is caught while committing a crime punishable by death or one that is infamante or aflictivo.204 In some countries, parliament must be informed of the flagrante arrest of a Member of Parliament (Yemen) and in others this right goes hand in hand with the right to request the (provisional)[release of the parliamentarian concerned (Georgia, Lebanon, Thailand).]

204 See, Robert Myttenaere, Moscow Session (September 1998), The Immunities of Members of Parliament,[7]

There are some exceptions, however, as certain countries make distinctions based on the seriousness of the offence. Thus, in Iraq and Rwanda the flagrante delicto rule (arrest without consent of the parliament) applies only if a member is caught in the commission of a felony, in Serbia and Montenegro and The former Yugoslav Republic of Macedonia, Timor-Leste only in the case of a crime punishable by over 5 years’ imprisonment, and in Argentina only if the parliamentarian is caught while committing a crime punishable by death or one that is infamante or aflictivo. In some countries, parliament must be informed of the flagrante arrest of a member of parliament (Yemen) and in others this right goes hand in hand with the right to request the (provisional) release of the parliamentarian concerned (Georgia, Lebanon, Thailand).
Anmerkungen

Art und Umfang der Übernahme bleiben ungekennzeichnet.

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(Singulus), WiseWoman

[73.] Wy/Fragment 062 01 - Diskussion
Bearbeitet: 12. September 2013, 15:46 WiseWoman
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[In Thailand, members may not be arrested, detained or summoned as suspects in] criminal cases without the consent of parliament. In addition, they may not be prosecuted on a criminal charge without the consent of parliament202 unless the charge was brought under specific laws (electoral law, law on the Election Commission and law on political parties) provided that the trial proceedings do not prevent the member from attending the sittings of the House.

6.2.5 Freedom from Arrest and Flagrante Delicto

As a rule, freedom from arrest (inviolability) does not apply to cases of flagrante delicto and members of parliament, when caught in the process of committing a crime may be arrested just like anyone else.


202 See, Thailand Constitution, Part 4, Section 131,[8].

In Thailand, members may not be arrested, detained or summoned as suspects in criminal cases without the consent of parliament. In addition, they may not be prosecuted on a criminal charge without the consent of parliament unless the charge was brought under specific laws (electoral law, law on the Election Commission and law on political parties) provided that the trial proceedings do not prevent the member from attending the sittings of the House.

(e) Inviolability and flagrante delicto

As a rule, inviolability does not apply to cases of flagrante delicto and members of parliament, when caught in the process of committing a crime may be arrested just like anyone else.

Anmerkungen

Art und Umfang der Übernahme bleiben ungekennzeichnet.

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(Singulus), WiseWoman

[74.] Wy/Fragment 061 01 - Diskussion
Bearbeitet: 12. September 2013, 15:43 WiseWoman
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In most countries, freedom from arrest (inviolability) precludes either the institution of legal proceedings and/or arrest and detention of a Member of Parliament without the consent of parliament.198 As stated earlier, there is a clear tendency to restrict inviolability to the arrest and detention of members of parliament and to exclude from its scope the institution of criminal proceedings.199 Among the countries covered by the UNDP initiative, Afghanistan, Iraq, Philippines, The Former Yugoslav Republic of Macedonia and Timor-Leste afford inviolability only for the arrest of a Member of Parliament. 200 Such arrest is consequently subject to the consent of the parliament. In Argentina, the arrest of a member in the course of judicial proceedings (for the institution of which the consent of parliament is not required), is only possible with parliament’s approval, as is the search of the house and workplace of the parliamentarian concerned and the interception of mail and telephone conversations. This is also the case in Georgia, where in addition to arrest or detention, the search of the home, car or workplace or any personal search of a member needs to be approved by the parliament.201 In the other countries covered by the study (except of course those following British parliamentary tradition), the judicial authorities must seek parliament’s permission not only to arrest but also to institute judicial proceedings. In Thailand, members may not be arrested, detained or summoned as suspects in [criminal cases without the consent of parliament.]

198 See, Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf.

199 Id.

200 See, Robert Myttenaere, Moscow Session (September 1998), The Immunities of Members of Parliament, [9]

201 Georgia Constitution, Article 52, Section2 [sic], Arrest or detention of a member of the Parliament, the search of his/her apartment, car, workplace or his/her person shall be permissible only by the consent of the Parliament, except in the cases when he/she is caught flagrante delicto which shall immediately be notified to the Parliament. Unless the Parliament gives the consent, the arrested or detained member of the Parliament shall immediately be released.

In most countries, inviolability precludes either the institution of legal proceedings and/or arrest and detention of a member of parliament without the consent of parliament. As stated earlier, there is a clear tendency to restrict inviolability to the arrest and detention of members of parliament and to exclude from its scope the institution of criminal proceedings. Among the countries covered by the UNDP initiative, Afghanistan, Iraq, Philippines, The Former Yugoslav Republic of Macedonia and Timor-Leste afford inviolability only for the arrest of a member of parliament. Such arrest is consequently subject to the consent of the parliament. In Argentina, the arrest of a member in the course of judicial proceedings (for the institution of which the consent of parliament is not required), is only possible with parliament's approval, as is the search of the house and workplace of the parliamentarian concerned and the interception of mail and telephone conversations. This is also the case in Georgia, where in addition to arrest or detention, the search of the home, car or workplace or any personal search of a member needs to be approved by the parliament (Article 52 of the Constitution). In the other countries covered by the study (except of course those following British parliamentary tradition), the judicial authorities must seek parliament's permission not only to arrest but also to institute judicial proceedings. In Thailand, members may not be arrested, detained or summoned as suspects in criminal cases without the consent of parliament.
Anmerkungen

Art und Umfang der Übernahme bleiben ungekennzeichnet.

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[75.] Wy/Fragment 060 01 - Diskussion
Bearbeitet: 12. September 2013, 15:38 WiseWoman
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[Once it has expired, members of parliament may] consequently be prosecuted for offences in respect of which parliament had not lifted immunity. The Standing Orders of Timor-Leste and Argentina provide specifically that, in the case of a refusal to lift inviolability, the prescription period of a crime is suspended.194 However, there seems to be an exception to this rule in Iraq since Article 60 Cof [sic!] the Constitution 195 stipulates that a member of the Council of Representatives may not be arrested after the legislative term without the consent of the Speaker, unless he/she is accused of a felony or is caught in flagrante delicto committing a felony. With respect to judicial proceedings pending at the time of taking up office, in the majority of countries they cannot be pursued without the explicit authorization of the assembly.

6.2.3 Restrictions Based on the Nature of the Offence

As regards restrictions based on the nature of the offence, there are many different practices. Some countries make no such distinction (Bolivia, Burundi, Cambodia, Lebanon),196 others exclude protection for serious offences and others, on the contrary, take the view that immunity should apply in serious cases only and not for minor offences (for example Rwanda, where parliamentarians suspected of a serious felony enjoy protection).197

6.2.4 Restrictions Concerning Criminal Procedural Acts


194 See, Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, [10].

195 Iraqi Constitution, Art.60, C, “A Council of Representatives member may not be arrested after the legislative term of the Council of Representatives, unless the member is accused of a felony and with the consent of the speaker of the Council of Representatives to lift his immunity or if he is caught in flagrante delicto in the commission of a felony.”

196 See, Robert Myttenaere, Moscow Session (September 1998), The Immunities of Members of Parliament,[11].

197 Id.

Once it has expired, members of parliament may consequently be prosecuted for offences in respect of which parliament had not lifted immunity. The Standing Orders of Timor-Leste and Argentina provide specifically that, in the case of a refusal to lift inviolability, the prescription period of a crime is suspended (Article 8, para. 5, Article 5 of Law 25.320 on the Lifting of Parliamentary Immunity, respectively). However, there seems to be an exception to this rule in Iraq since Article 60 C of the Constitution stipulates that a member of the Council of Representatives may not be arrested after the legislative term without the consent of the Speaker, unless he/she is accused of a felony or is caught in flagrante delicto committing a felony. With respect to judicial proceedings pending at the time of taking up office, in the majority of countries they cannot be pursued without the explicit authorization of the assembly.

(c) Restrictions based on the nature of the offence

As regards restrictions based on the nature of the offence, there are many different practices. Some countries make no such distinction (Bolivia, Burundi, Cambodia, Lebanon), others exclude protection for serious offences and others, on the contrary, take the view that immunity should apply in serious cases only and not for minor offences (for example Rwanda, where parliamentarians suspected of a serious felony enjoy protection).

(d) Restrictions concerning criminal procedural acts

Anmerkungen

Art und Umfang der Übernahme bleiben ungekennzeichnet.

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[76.] Wy/Fragment 182 01 - Diskussion
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In countries with a strong executive dominating the parliament, parliamentary privilege may fail to afford the protection it is meant to provide,547 and it is easy to see why: in such parliaments, the Presiding Officer and parliamentary authorities- generally members of the majority party and often inclined to support its interests - may use their disciplinary powers to the detriment of the opposition, censor opposition members for statements critical of the government, suspend their mandate and even expel them from parliament. If Rules of Procedure (Standing Orders) are not handled impartially, the opposition as such may end up being greatly hampered in effectively carrying out its mandate. Moreover, government-dominated parliaments may sometimes find it difficult to accept opposing views, and there have been cases where all - apparently legal - possibilities were resorted to in order to oust opposition members from parliament. 548 Among the prominent cases is certainly that of the first ever opposition member in the parliament of Singapore, Mr. Joshua B. Jeyaretnam, who was stripped of his parliamentary mandate in 2001 after the then Prime Minister and Foreign Minister and others won a series of defamation proceedings against him, followed by bankruptcy proceedings. The IPU Committee and many other human rights organizations took the view that in making the allegedly offending statements, Mr. Jeyaretnam was exercising his freedom of speech and that, moreover, the sequence and timing of the defamation and bankruptcy proceedings brought against him suggested a clear intention to target him for the purpose of making him a bankrupt and thereby removing him from parliament.549

547 Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf.

548 Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf.

549 Resolution adopted by the IPU Governing Council at its 170th session (March 2002).

In countries with a strong executive dominating the parliament, parliamentary immunity may fail to afford the protection it is meant to provide, and it is easy to see why: in such parliaments, the Presiding Officer and parliamentary authorities- generally members of the majority party and often inclined to support its interests - may use their disciplinary powers to the detriment of the opposition, censor opposition members for statements critical of the government, suspend their mandate and even expel them from parliament. If Rules of Procedure (Standing Orders) are not handled impartially, the opposition as such may end up being greatly hampered in effectively carrying out its mandate. Moreover, government-dominated parliaments may sometimes find it difficult to accept opposing views, and there have been cases where all - apparently legal - possibilities were resorted to in order to oust opposition members from parliament. Among the prominent cases is certainly that of the first ever opposition member in the parliament of Singapore, Mr. Joshua B. Jeyaretnam, who was stripped of his parliamentary mandate in 2001 after the then Prime Minister and Foreign Minister and others won a series of defamation proceedings against him, followed by bankruptcy proceedings.45 The IPU Committee and many other human rights organizations took the view that in making the allegedly offending statements, Mr. Jeyaretnam was exercising his freedom of speech and that, moreover, the sequence and timing of the defamation and bankruptcy proceedings brought against him suggested a clear intention to target him for the purpose of making him a bankrupt and thereby removing him from parliament.46

45 Members of the parliament of Singapore enjoy only the privilege of freedom of speech; they forfeit their mandate if declared bankrupt.

46 Resolution adopted by the IPU Governing Council at its 170th session (March 2002).

Anmerkungen

Ganzseitige wörtliche Übernahme nicht als solche gekennzeichnet.

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(Singulus), WiseWoman

[77.] Wy/Fragment 181 13 - Diskussion
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Without a doubt, a well-defined system of parliamentary privileges is absolutely necessary for the functioning of a parliament, without which parliaments would degenerate into polite and ineffective debating forums. It is clear that this protection is all the more necessary for parliaments operating in a difficult environment, as is the case in transitional societies. But parliaments do not operate in a vacuum and are largely relyed [sic!] on their political environment and its respect for democratic and human rights principles. Therefore, it is also clear that parliamentary privilege in itself is not sufficient to create the space of liberty and independence that parliaments require. There is no doubt that a well-defined system of parliamentary immunities is absolutely necessary for the functioning of a parliament, without which parliaments would degenerate into polite and ineffective debating forums. It is clear that this protection is all the more necessary for parliaments operating in a difficult environment as is the case in transitional societies. But parliaments do not operate in a vacuum and are largely dependent on their political environment and its respect for democratic and human rights principles. It is therefore also clear that parliamentary immunity in itself is not sufficient to create the space of liberty and independence that parliaments require.
Anmerkungen

Kleine Umformulierungen mit zusätzlichem Fehler. Ohne Quellenangabe.

Sichter
(Singulus), WiseWoman

[78.] Wy/Fragment 064 01 - Diskussion
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[It entitles parliament only to ensure that members of parliament are not arrested] and prosecuted on baseless charges. If they are satisfied that such is not the case, parliaments lift immunity. The relevant procedures are broadly similar and differ mainly in terms of the authority empowered to file a request for the lifting of immunity, the possibility of waiving one’s immunity, and the possibility of filing an appeal against the decision to lift immunity.

6.3.1 Procedure Generally Observed

Generally speaking, the judicial authorities (prosecutor, court) must send a request to the Presiding Officer. A parliamentary committee, either a standing committee on privileges or an ad hoc committee, is then entrusted with examining the request and making a recommendation to the plenary, which takes a vote. The composition of that committee may of course influence the outcome of deliberations, as may majority requirements for the vote in the plenary. These differ from country to country but generally a simple majority must be obtained (in Iraq an absolute majority is required).207 In some cases, for example Timor-Leste and the Republic of Moldova, the Rules of Procedure stipulate that the vote has to be secret.208 During periods when parliament is not sitting, the Assembly Bureau is usually competent to examine requests for the lifting of immunity and to take a decision, which at the Assembly’s next sitting must be approved. In very rare cases, the Presiding Officer may decide on such matters. For example, the Speaker of the Iraqi Council of Representatives may authorize or not the arrest of a member after the expiry of his/her term.209 Article 92 of the Constitution of Sudan vests the Presiding Officers of both Chambers with authority to decide whether or not to authorize the institution of criminal proceedings against a [member of the respective Chamber or the taking of any measure against his/her personal belongings.210]


207 See, Marc Van der Hulst, The Parliamentary Mandate, Geneva: Inter-Parliamentary Union, 2000, p.91.

208 Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf.

[209 Id.

210 Id.]

It entitles parliament only to ensure that members of parliament are not arrested and prosecuted on baseless charges. If they are satisfied that such is not the case, parliaments lift immunity. The relevant procedures are broadly similar and differ mainly in terms of the authority empowered to file a request for the lifting of immunity, the possibility of waiving one’s immunity, and the possibility of filing an appeal against the decision to lift immunity.

(a) Procedure generally observed

Generally speaking, the judicial authorities (prosecutor, court, Minister of Justice) must send a request to the Presiding Officer. A parliamentary committee, either a standing committee on privileges or an ad hoc committee, is then entrusted with examining the request and making a recommendation to the plenary, which takes a vote. The composition of that committee may of course influence the outcome of deliberations, as may majority requirements for the vote in the plenary. These differ from country to country but generally a simple majority must be obtained (in Iraq an absolute majority is required). In some cases, for example Timor-Leste and the Republic of Moldova, the Rules of Procedure stipulate that the vote has to be secret. During periods when parliament is not sitting, the Assembly Bureau is usually competent to examine requests for the lifting of immunity and to take a decision, which at the Assembly's next sitting must be approved. In very rare cases, the Presiding Officer may decide on such matters. For example, the Speaker of the Iraqi Council of Representatives may authorize or not the arrest of a member after the expiry of his/her term (see also under 4b). Article 92 of the Constitution of Sudan vests the Presiding Officers of both Chambers with authority to decide whether or not to authorize the institution of criminal proceedings against a member of the respective Chamber or the taking of any measure against his/her personal belongings.

Anmerkungen

Ganzseitige Übernahme. Art und Umfang der Übernahme bleiben ungekennzeichnet.

Sichter
(Singulus), WiseWoman

[79.] Wy/Fragment 063 01 - Diskussion
Bearbeitet: 12. September 2013, 15:12 WiseWoman
Erstellt: 12. September 2013, 09:52 (Singulus)
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[In some countries, parliament must be informed of the flagrante arrest of a Member of Parliament (Yemen) and in others this right goes hand in hand with the right to request the (provisional)] release of the parliamentarian concerned (Georgia, Lebanon, Thailand). In the Republic of Moldova, in cases of flagrante delicto a Member of Parliament can only be placed under house arrest for 24 hours with the prior consent of the Prosecutor General, who in turn must inform the Speaker of Parliament. The latter can order the release of the member concerned.205

Although flagrante delicto is a logical restriction on parliamentary inviolability because the validity of the prosecution cannot be questioned, given that the facts constituting the offence and the identity of the perpetrator are clearly established, it may serve as an ideal loophole for arresting a parliamentarian protected by immunity. As the experience of the IPU Committee on the Human Rights of Parliamentarians has shown, flagrante delicto is sometimes easily invoked even failing any ingredients of a flagrante delicto offence. Examples concern the arrest of members of parliament for several days and even months after the alleged facts under the pretext of a “flagrant crime”, the arrest of parliamentarians who had participated in a peaceful demonstration, but were held responsible under the flagrante delicto procedure for acts of violence which occurred after they had left the premises, and the arrest of a parliamentarian for allegedly having signed uncovered cheques several months before his arrest. The Committee has consequently recalled that a broad interpretation of flagrante delicto may amount to voiding immunity itself of any real meaning.206

6.3 The Procedure of Lifting Parliamentary Inviolability

As already stated, parliamentary inviolability does not offer an absolute protection, and certainly does not seek to afford members of parliament impunity. It entitles parliament only to ensure that members of parliament are not arrested [and prosecuted on baseless charges.]


205 Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf.

206 Resolution adopted by the Inter-Parliamentary Council on case SN/02,03,04, September, 1994.

In some countries, parliament must be informed of the flagrante arrest of a member of parliament (Yemen) and in others this right goes hand in hand with the right to request the (provisional) release of the parliamentarian concerned (Georgia, Lebanon, Thailand). In the Republic of Moldova, in cases of flagrante delicto a member of parliament can only be placed under house arrest for 24 hours with the prior consent of the Prosecutor General, who in turn must inform the Speaker of Parliament. The latter can order the release of the member concerned.

Although flagrante delicto is a logical restriction on parliamentary inviolability because the validity of the prosecution cannot be questioned, given that the facts constituting the offence and the identity of the perpetrator are clearly established, it may serve as an ideal loophole for arresting a parliamentarian protected by immunity. As the experience of the IPU Committee on the Human Rights of Parliamentarians has shown, flagrante delicto is sometimes easily invoked even failing any ingredients of a flagrante delicto offence. Examples concern the arrest of members of parliament for several days and even months after the alleged facts under the pretext of a “flagrant crime”, the arrest of parliamentarians who had participated in a peaceful demonstration, but were held responsible under the flagrante delicto procedure for acts of violence which occurred after they had left the premises, and the arrest of a parliamentarian for allegedly having signed uncovered cheques several months before his arrest. The Committee has consequently recalled that a broad interpretation of flagrante delicto may amount to voiding immunity itself of any real meaning.35

5.2. _The procedure of lifting parliamentary inviolability_

As already stated, parliamentary inviolability does not offer an absolute protection, and certainly does not seek to afford members of parliament impunity. It entitles parliament only to ensure that members of parliament are not arrested and prosecuted on baseless charges.


35 Resolution adopted by the Inter-Parliamentary Council on case SN/02,03,04, September 1994.

Anmerkungen

Ganzseitige Übernahme. Art und Umfang der Übernahme bleiben ungekennzeichnet.

Sichter
(Singulus), WiseWoman

[80.] Wy/Fragment 069 01 - Diskussion
Bearbeitet: 12. September 2013, 15:03 WiseWoman
Erstellt: 12. September 2013, 07:58 (Singulus)
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[In most countries, parliament is not entitled to suspend the detention of a] Member of Parliament or proceedings against him/her.220 There are exceptions, however, particularly in countries with a French parliamentary tradition, but also in Germany and Austria, where parliament may adopt such a decision either on its own initiative or at the request of a certain number of its members, or of the member concerned.221In Thailand, the speaker may request the release of a member who was detained during the investigation or trial before the start of parliament’s session.222

6.3.7 Right of Detained Members to Attend Parliamentary Sittings

With respect to the right of a Member of Parliament held in preventive detention to attend sittings of parliament, only a few countries provide for this possibility (Greece, Mali, Thailand, Pakistan), 223 although this would be in accordance with the principle of presumption of innocence and the interest of parliament to secure the attendance and service of its members. Taking account of the fact that, while a parliamentarian is in preventive detention, his/her constituents are without representation, the IPU has held in several cases that parliamentarians should be authorized to attend parliamentary sittings so long as judgment has not been handed down. In most countries, parliamentarians lose [their mandate once they are sentenced to a specific term of imprisonment, and the question of attendance therefore no longer arises.224]


220 Id.

221 Id.

222 See, Thailand Constitution, Part 4, Section 131, [12].

223 Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf.

[224 See, Marc Van der Hulst,The Parliamentary Mandate,Geneva: Inter-Parliamentary Union, 2000, p.93.]

In most countries, parliament is not entitled to suspend the detention of a member of parliament or proceedings against him/her. There are exceptions, however, particularly in countries with a French parliamentary tradition, but also in Germany and Austria, where parliament may adopt such a decision either on its own initiative or at the request of a certain number of its members, or of the member concerned. In Thailand, the speaker may request the release of a member who was detained during the investigation or trial before the start of parliament's session. (Constitution, Article 167)

(f) Right of detained members to attend parliamentary sittings

With respect to the right of a member of parliament held in preventive detention to attend sittings of parliament, only a few countries provide for this possibility (Greece, Mali, Thailand, Pakistan), although this would be in accordance with the principle of presumption of innocence and the interest of parliament to secure the attendance and service of its members. Taking account of the fact that, while a parliamentarian is in preventive detention, his/her constituents are without representation, the IPU has held in several cases that parliamentarians should be authorized to attend parliamentary sittings so long as judgment has not been handed down. In most countries, parliamentarians lose their mandate once they are sentenced to a specific term of imprisonment, and the question of attendance therefore no longer arises.

Anmerkungen

Ganzseitige Übernahme. Art und Umfang der Übernahme bleiben ungekennzeichnet.

Sichter
(Singulus), WiseWoman

[81.] Wy/Fragment 066 01 - Diskussion
Bearbeitet: 12. September 2013, 15:03 Hindemith
Erstellt: 11. September 2013, 22:39 (Singulus)
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[This is the case in Guatemala, for example, where the Supreme Court of Justice, after examining a] report by a judge it appoints to this effect, decides whether or not proceedings shall be instituted against a member of the Congress of the Republic (Article 161a of the Constitution). In Chile, it is the competent court of appeal that is entitled to lift immunity, and members of parliament may lodge an appeal against the decision to the Supreme Court. 212 In other countries, Israel for example, parliament’s decision to lift immunity is subject to judicial review by the Supreme Court. A decision of parliament may therefore be overturned by court.213 In a recent case concerning a member of the Knesset whose immunity had been lifted by the Knesset to permit his prosecution on terrorism-related charges, the question of parliamentary immunity was raised as a preliminary issue in the judicial proceedings. An appeal to the Supreme Court was lodged against the first-instance court’s decision to decide on this question at the end of the proceedings. In its ruling of 1 February 2006, the Supreme Court dismissed the charges against the member in question, taking the view that the offending statements came within the scope of his parliamentary immunity, the aim of which is to secure effective representation for all groups and political opinions in Israel.214

6.3.3 The Right to Defence

An important issue is respect for the rights of the defence. In some countries, the right of the parliamentarians concerned to present his/her defence is explicitly recognized in the constitution or standing orders. This applies for example to Bolivia215 and the Republic of Moldova.216 Not in all countries, however, is it a [matter of course for the parliamentarian in question to be heard before a recommendation is made or the vote is taken by the parliament.]


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

213 Id.

214 Adalah The Legal Center for Arab Minority Rights in Israel, News Update, February 14, 2006.

215 Art. 27b of the Standing Orders of the Chamber of Deputies in Bolivia.

[216 Art. 10, para. 2, of the Law on the Status of Deputies in Moldova.]

This is the case in Guatemala, for example, where the Supreme Court of Justice, after examining a report by a judge it appoints to this effect, decides whether or not proceedings shall be instituted against a member of the Congress of the Republic (Article 161a of the Constitution). In Chile, it is the competent court of appeal that is entitled to lift immunity, and members of parliament may lodge an appeal against the decision to the Supreme Court. In other countries, Israel for example, parliament’s decision to lift immunity is subject to judicial review by the Supreme Court. A decision of parliament may therefore be overturned by court. In a recent case concerning a member of the Knesset whose immunity had been lifted by the Knesset to permit his prosecution on terrorism-related charges, the question of parliamentary immunity was raised as a preliminary issue in the judicial proceedings. An appeal to the Supreme Court was lodged against the first-instance court’s decision to decide on this question at the end of the proceedings. In its ruling of 1 February 2006, the Supreme Court dismissed the charges against the member in question, taking the view that the offending statements came within the scope of his parliamentary immunity, the aim of which is to secure effective representation for all groups and political opinions in Israel.37

(c) The right to defence

An important issue is respect for the rights of the defence. In some countries, the right of the parliamentarians concerned to present his/her defence is explicitly recognized in the constitution or standing orders. This applies for example to Bolivia (Art. 27b of the Standing Orders of the Chamber of Deputies) and the Republic of Moldova (Art. 10, para. 2, of the Law on the Status of Deputies). Not in all countries, however, is it a matter of course for the parliamentarian in question to be heard before a recommendation is made or the vote is taken by the parliament.


37 Adalah The Legal Center for Arab Minority Rights in Israel, News Update, 14 February 2006.

Anmerkungen

Die Quelle wurde lediglich auf S. 64 erwähnt. Art und Umfang der Übernahme bleiben ungekennzeichnet.

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(Singulus), WiseWoman

[82.] Wy/Fragment 067 01 - Diskussion
Bearbeitet: 12. September 2013, 14:59 WiseWoman
Erstellt: 11. September 2013, 22:54 (Singulus)
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[Not in all countries, however, is it a] matter of course for the parliamentarian in question to be heard before a recommendation is made or the vote is taken by the parliament. One of the most recent examples is a case which occurred in February 2005 when the Cambodian National Assembly lifted the immunity of three of its members without hearing them and offering them the possibility of presenting their defence. The IPU has always held that it is a principle of natural justice that parliamentarians be heard and entitled to defend themselves, even if such right is not explicitly mentioned in relevant law.217

6.3.4 Monitoring of Judicial Proceedings

The lifting of immunity opens the way to arrest and/or judicial proceedings. Apart from the cases referred to below, there are generally no specific provisions for parliaments to monitor proceedings against a member whose immunity has been lifted. However, such monitoring can be essential to ensure not only that the Member of Parliament in question receives a fair trial but also, generally speaking, that respect is strengthened for fair trial guarantees. In many cases, therefore, the IPU has recommended that parliaments monitor proceedings to this end. A case in Burundi shows that this may be effective.218 In July 2004 a member of the then Transitional National Assembly, coordinator of a former rebel movement, was arrested in flagrante delicto on account of the presence in his home of a presumed criminal, a member of an armed group which reportedly wished to join the peace process. The Bureau of the Transitional National Assembly lifted his immunity “to enable the judiciary to investigate the case [calmly and without hindrance” while reserving the right to review its position after a period of two months.]


216 Art. 10, para. 2, of the Law on the Status of Deputies in Moldova.

217 Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, [13].

218 Id.

Not in all countries, however, is it a matter of course for the parliamentarian in question to be heard before a recommendation is made or the vote is taken by the parliament. One of the most recent examples is a case which occurred in February 2005 when the Cambodian National Assembly lifted the immunity of three of its members without hearing them and offering them the possibility of presenting their defence. The IPU has always held that it is a principle of natural justice that parliamentarians be heard and entitled to defend themselves, even if such right is not explicitly mentioned in relevant law.

(d) Monitoring of judicial proceedings

The lifting of immunity opens the way to arrest and/or judicial proceedings. Apart from the cases referred to below, there are generally no specific provisions for parliaments to monitor proceedings against a member whose immunity has been lifted. However, such monitoring can be essential to ensure not only that the member of parliament in question receives a fair trial but also, generally speaking, that respect is strengthened for fair trial guarantees. In many cases, therefore, the IPU has recommended that parliaments monitor proceedings to this end.

A case in Burundi shows that this may be effective. In July 2004 a member of the then Transitional National Assembly, coordinator of a former rebel movement, was arrested in flagrante delicto on account of the presence in his home of a presumed criminal, a member of an armed group which reportedly wished to join the peace process. The Bureau of the Transitional National Assembly lifted his immunity "to enable the judiciary to investigate the case calmly and without hindrance" while reserving the right to review its position after a period of two months.

Anmerkungen

Art und Umfang der Übernahme bleiben ungekennzeichnet.

Das Fußnotenzeichen zur Fußnote 216 befindet sich auf der Vorseite.

Sichter
(Singulus), WiseWoman

[83.] Wy/Fragment 068 01 - Diskussion
Bearbeitet: 12. September 2013, 14:58 WiseWoman
Erstellt: 12. September 2013, 07:37 (Singulus)
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[The Bureau of the Transitional National Assembly lifted his immunity “to enable the judiciary to investigate the case] calmly and without hindrance” while reserving the right to review its position after a period of two months. The parliamentarian was released on parole in September 2004 and participated in the July 2005 elections, when he was indeed re-elected. However, charges of “association for the purpose of attacking persons and property” were still pending against him. The Bureau of the newly elected Assembly took up the case and refused to allow his prosecution finding that his flagrante delicto arrest was unjustified and that procedure had been substantially flawed since the Prosecutor General had failed to provide a report on the facts; the parliamentarian concerned had not been heard and the chairpersons of the parliamentary groups and standing committees had not been consulted, in breach of the relevant rules.

6.3.5 Waiving Parliamentary Inviolability

In most countries, parliamentary inviolability is a matter of public policy and therefore cannot be waived. There are, however, exceptions to this rule and one of the foremost is the Philippines where members of parliament, and they alone, can waive inviolability either explicitly or by deciding not to invoke it under the relevant circumstances.219

6.3.6 Lifting of Inviolability Conditionally and Right to Request Suspension of Detention

Generally, owing to the principle of separation of powers, parliaments are not entitled to impose any conditions on the lifting of immunity. However, in some countries (Belgium and France for example) a partial lifting of immunity is possible. In most countries, parliament is not entitled to suspend the detention of a [Member of Parliament or proceedings against him/her.220]


219 Marc Van der Hulst, The Parliamentary Mandate,Geneva: Inter-Parliamentary Union, 2000, p.91.

[220 Id.]

The Bureau of the Transitional National Assembly lifted his immunity "to enable the judiciary to investigate the case calmly and without hindrance" while reserving the right to review its position after a period of two months. The parliamentarian was released on parole in September 2004 and participated in the July 2005 elections, when he was indeed re-elected. However, charges of "association for the purpose of attacking persons and property" were still pending against him. The Bureau of the newly elected Assembly took up the case and refused to allow his prosecution finding that his flagrante delicto arrest was unjustified and that procedure had been substantially flawed since the Prosecutor General had failed to provide a report on the facts; the parliamentarian concerned had not been heard and the chairpersons of the parliamentary groups and standing committees had not been consulted, in breach of the relevant rules.

(d) Waiving parliamentary inviolability

In most countries, parliamentary inviolability is a matter of public policy and therefore cannot be waived. There are, however, exceptions to this rule and one of the foremost is the Philippines where members of parliament, and they alone, can waive inviolability either explicitly or by deciding not to invoke it under the relevant circumstances.38

(e) Lifting of inviolability conditionally and right to request suspension of detention

Generally, owing to the principle of separation of powers, parliaments are not entitled to impose any conditions on the lifting of immunity. However, in some countries (Belgium and France for example) a partial lifting of immunity is possible. In most countries, parliament is not entitled to suspend the detention of a member of parliament or proceedings against him/her.


38 Marc van der Hulst, op. cit., p. 91.

Anmerkungen

Ganzseitige Übernahme einschließlich FN. Quelle wird auf Vorseite genannt. Art und Umfang der Übernahme bleiben ungekennzeichnet.

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[84.] Wy/Fragment 065 01 - Diskussion
Bearbeitet: 12. September 2013, 14:52 Hindemith
Erstellt: 10. September 2013, 21:50 (Graf Isolan)
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[Article 92 of the Constitution of Sudan vests the Presiding Officers of both Chambers with authority to decide whether or not to authorize the institution of criminal proceedings against a] member of the respective Chamber or the taking of any measure against his/her personal belongings.210

It is important to stress that procedures should be in place which, as far as possible, prevent decisions on the lifting of parliamentary immunity from being taken along party lines. Parliamentarians should be aware that immunity issues are not partisan issues, but affect the institution of parliament as such. Recent developments in the Philippines are noteworthy in this respect: On 25 February 2006, a reportedly unlawful attempt was made to arrest five opposition members of parliament. They were able to enter the House of Representatives and remained there from 27 February until 8 May 2006. On 28 February, the House of Representatives unanimously adopted a resolution affirming the right of the persons concerned to due process and granting them “protective custody” in the absence of any judicially issued arrest warrant resulting from a preliminary investigation or indictment.211

6.3.2 Decision Made by Courts and not by Parliament

In very rare cases and as notable exceptions to the separation of powers, it is not parliament but the courts which lift parliamentary immunity. This is the case in Guatemala, for example, where the Supreme Court of Justice, after examining a [report by a judge it appoints to this effect, decides whether or not proceedings shall be instituted against a member of the Congress of the Republic (Article 161a of the Constitution).]


[208 Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/ Docs/Global/IPU%20-%20UNDP% 20Immunity%20Paper.pdf.

209 Id.]

210 Id.

211 Charges of rebellion were brought against the parliamentarians concerned in February 2006; the court dismissed them on 4 May 2006. The prosecution brought new charges of rebellion on 11 May 2006. Pending a decision of the Supreme Court on a certiorari petition, the court suspended proceedings in August 2006, According to Section 11 of the Constitution, while Congress is in session, members of both chambers of parliament are privileged from arrest in all offences punishable by not more than 6 years’ imprisonment. The crime of rebellion carries more than six years' imprisonment; Quoted, Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/ Global/IPU%20%20UNDP%20Immunity%20Paper.pdf.

Article 92 of the Constitution of Sudan vests the Presiding Officers of both Chambers with authority to decide whether or not to authorize the institution of criminal proceedings against a member of the respective Chamber or the taking of any measure against his/her personal belongings.

It is important to stress that procedures should be in place which, as far as possible, prevent decisions on the lifting of parliamentary immunity from being taken along party lines. Parliamentarians should be aware that immunity issues are not partisan issues, but affect the institution of parliament as such. Recent developments in the Philippines are noteworthy in this respect: On 25 February 2006, a reportedly unlawful attempt was made to arrest five opposition members of parliament. They were able to enter the House of Representatives and remained there from 27 February until 8 May 2006. On 28 February, the House of Representatives unanimously adopted a resolution affirming the right of the persons concerned to due process and granting them "protective custody" in the absence of any judicially issued arrest warrant resulting from a preliminary investigation or indictment.36

(b) Decision taken by courts and not by parliament

In very rare cases and as notable exceptions to the separation of powers, it is not parliament but the courts which lift parliamentary immunity. This is the case in Guatemala, for example, where the Supreme Court of Justice, after examining a report by a judge it appoints to this effect, decides whether or not proceedings shall be instituted against a member of the Congress of the Republic (Article 161a of the Constitution).


36 Charges of rebellion were brought against the parliamentarians concerned in February 2006; the court dismissed them on 4 May 2006. The prosecution brought new charges of rebellion on 11 May 2006. Pending a decision of the Supreme Court on a certiorari petition, the court suspended proceedings in August 2006. ,. According to Section 11 of the Constitution, while Congress is in session, members of both chambers of parliament are privileged from arrest in all offences punishable by not more than 6 years’ imprisonment. The crime of rebellion carries more than six years' imprisonment.

Anmerkungen

Art und Umfang der Übernahme bleiben ungekennzeichnet.

FN 208 mit der Quelle befindet sich auf S. 64. FN 209 befindet sich auf S. 65, während sich das zugehörige Fußnotenzeichen auf S. 64 befindet.

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[85.] Wy/Fragment 134 01 - Diskussion
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[On behalf of the House of Commons and the Speaker it was claimed that the hiring and firing of all House] employees were ‘internal affairs’ of Parliament that were not subject to judicial review. This ‘fundamentalist’ interpretation of the exclusive cognisance doctrine was rejected by the Supreme Court, for which Binnie J wrote the unanimous judgment. Applying the ‘test of necessity’ it was held that exclusive and unreviewable jurisdiction over all House employees was not necessary to protect the functioning of the House of Commons. The attachment of privilege to ‘some’ parliamentary employees was undoubtedly necessary, but not those who were only indirectly connected to the legislative and deliberative functions of the House.401 This was the case in respect to the Speaker’s chauffeur.

This followed Binnie J’s formulation of the test of necessity in these terms: In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfilment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.402


401 [2005] SCR 667, at para. 75.

402 [2005] SCR 667, at para. 46.

On behalf of the House of Commons and the Speaker it was claimed that the hiring and firing of all House employees were ‘internal affairs’ of Parliament that were not subject to judicial review. This ‘fundamentalist’ interpretation of the exclusive cognisance doctrine was rejected by the Supreme Court, for which Binnie J wrote the unanimous judgment. Applying the ‘test of necessity’ it was held that exclusive and unreviewable jurisdiction over all House employees was not necessary to protect the functioning of the House of Commons. The attachment of privilege to ‘some’ parliamentary employees was undoubtedly necessary, but not those who were only indirectly connected to the legislative and deliberative functions of the House.296 This was the case in respect to the Speaker’s chauffeur.

[...]

This followed Binnie J’s formulation of the test of necessity in these terms:

In order to sustain a claim of parliamentary privilege, the assembly or member seeking its immunity must show that the sphere of activity for which privilege is claimed is so closely and directly connected with the fulfillment by the assembly or its members of their functions as a legislative and deliberative body, including the assembly’s work in holding the government to account, that outside interference would undermine the level of autonomy required to enable the assembly and its members to do their work with dignity and efficiency.298


296 [2005] SCR 667 at para 75.

298 [2005] SCR 667 at para 46. For a commentary on the case see - S Joyal, n 188.

Anmerkungen

Erneut: Identischer Text, identische Zitate - die eigentliche Quelle bleibt ungenannt.

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(Graf Isolan), WiseWoman

[86.] Wy/Fragment 120 18 - Diskussion
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Further to the doctrine of “exclusive cognisance”, the courts are precluded from intervening in the legislative process on several grounds. These include considerations arising from the separation of powers that require a policy of non-[intervention, added to considerations arising from Article 9 that preclude judicial questioning of parliamentary proceedings.] Further to the doctrine of ‘exclusive cognisance’, the courts are precluded from intervening in the legislative process on several grounds. These include considerations arising from the separation of powers that require a policy of non-intervention, added to considerations arising from Article 9 that preclude judicial questioning of parliamentary proceedings.
Anmerkungen

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Beginn einer sich über Seiten hinziehenden weitgehend wortwörtlichen Übernahme, die erst auf Seite 124 enden wird.

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[87.] Wy/Fragment 113 01 - Diskussion
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[It recommended: (a) that the Parliamentary Privilege Act 1891 be amended to include a provision which ensures that parliamentary proceedings cannot be used to establish what] was ‘effectively’ but not actually said outside Parliament; and (b) that a uniform national approach be adopted through the auspices of the Standing Committee of Attorneys General.339

By reference to the ruling of the New Zealand Court of Appeal, Odgers Australian Senate Practice declared that Buchanan v. Jennings was ‘wrongly’ decided.340


339 Western Australia, Legislative Assembly, Procedure and Privileges Committee, Effective Repetition: Decision in Buchanan v Jennings, Report No 3, 2006.

340 H.Evans, Odgers’ Australian Senate Practice, 11th ed., Department of the Senate 2004, p.44.

[...]244 It recommended: (a) that the Parliamentary Privilege Act 1891 be amended to include a provision which ensures that parliamentary proceedings cannot be used to establish what was ‘effectively’ but not actually said outside Parliament; and (b) that the a uniform national approach be adopted through the auspices of the Standing Committee of Attorneys General.

By reference to the ruling of the New Zealand Court of Appeal, Odgers Australian Senate Practice declared that Buchanan v Jennings was ‘wrongly’ decided.245


244 Western Australia, Legislative Assembly, Procedure and Privileges Committee, Effective Repetition: Decision in Buchanan v Jennings, Report No 3, 2006.

245 Odgers, n 143, p 44.

Anmerkungen

Kein Hinweis auf eine Übernahme.

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(Graf Isolan), WiseWoman

[88.] Wy/Fragment 094 01 - Diskussion
Bearbeitet: 12. September 2013, 07:08 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.

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[89.] Wy/Fragment 093 01 - Diskussion
Bearbeitet: 12. September 2013, 06:12 WiseWoman
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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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[90.] Wy/Fragment 092 01 - Diskussion
Bearbeitet: 12. September 2013, 06:09 WiseWoman
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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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[91.] Wy/Fragment 091 01 - Diskussion
Bearbeitet: 12. September 2013, 06:08 WiseWoman
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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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[92.] Wy/Fragment 088 01 - Diskussion
Bearbeitet: 12. September 2013, 06:06 SleepyHollow02
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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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[93.] 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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[94.] 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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[95.] Wy/Fragment 112 01 - Diskussion
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[In May 2005 the Privileges Committee of the New Zealand House of Representatives published its report on the case in which it recommended that the Legislature Act 1908 is amended to provide that no person may incur criminal or civil liability for making any statement that affirms, adopts or endorses words written or spoken in] proceedings in Parliament where the statement would not, but for the proceedings in Parliament, give rise to criminal or civil liability.337

The Privileges Committee expressed four main concerns. The first concerned the principle of non-intervention between the courts and Parliament in cases of “effective repetition”. This was not an issue where a Member directly repeated a statement outside Parliament. When a statement was only affirmed or “effectively repeated”, however, this involves the parliamentary statement being put directly to the court as it is the main evidence for the proceedings. Secondly, the Committee considered the potential effects on free speech, in circumstances where a minimal response to a question posed by the media could result in civil liability. Thirdly, this may have a ‘chilling’ effect on public debate, whereby Members and committee witnesses are reluctant to submit themselves to subsequent interview for fear of losing their parliamentary immunity. Fourthly, the Privilege Committee was concerned that the Buchanan v Jennings doctrine would have an effect beyond defamation in a parliamentary context. Could it apply, for example, to a breach of statutory incitement laws in a parliamentary context? Might the doctrine also be applied to court proceedings, in which context absolute privilege also applies?338

In April 2006 these concerns were endorsed by the Procedure and Privileges Committee of the Western Australian Legislative Assembly. It recommended: (a) that the Parliamentary Privilege Act 1891 be amended to include a provision which ensures that parliamentary proceedings cannot be used to establish what [was ‘effectively’ but not actually said outside Parliament; and (b) that a uniform national approach be adopted through the auspices of the Standing Committee of Attorneys General.339]



337 Privileges Committee, Final Report on the question of privilege referred 21 July 1998 concerning Buchanan v Jennings, 1.17G, May 2005, p.9; For a commentary see – A Geddis, Parliamentary privilege: quis custodiet ipsos custodes? Public Law,Winter, 2005.

338 Gareth Griffith, Parliamentary Privilege: Major Developments and Current Issues, http://www.parliament.nsw.gov.au/ prod/parlment/publications.nsf/ 0/18DBE18C7D65CDF0CA 2572D100091751/$File/ ParliamentaryPrivelige07.pdf.

[339 Western Australia, Legislative Assembly, Procedure and Privileges Committee, Effective Repetition: Decision in Buchanan v Jennings, Report No 3, 2006.]

[Seite 66]

In May 2005 the Privileges Committee of the New Zealand House of Representatives published its report on the case in which it recommended that the Legislature Act 1908 be amended to provide that no person may incur criminal or civil liability for making any statement that affirms, adopts or endorses words written or spoken in proceedings in Parliament where the statement would not, but for the proceedings in Parliament, give rise to criminal or civil liability.243

The Privileges Committee expressed four main concerns. The first concerned the principle of non-intervention between the courts and Parliament in cases of ‘effective repetition’. This was not an issue where a Member directly repeated a statement outside Parliament. Where a statement was only affirmed or ‘effectively repeated’ however, this involves the parliamentary statement being put directly to the court as it is the main evidence for the proceedings. Secondly, the Committee considered the potential effects on free speech, in circumstances where a minimal response to a question posed by the media could result in civil liability. Thirdly, this may have a ‘chilling’ effect on public debate, whereby Members and committee witnesses are reluctant to submit themselves to subsequent interview for fear of losing their parliamentary immunity. Fourthly, the Privilege Committee was concerned that the Buchanan v Jennings doctrine would have an effect beyond defamation in a parliamentary context. Could it apply, for example, to a breach of statutory incitement laws in a parliamentary context? Might the doctrine also be applied to court proceedings, in

[Seite 67]

which context absolute privilege also applies?

In April 2006 these concerns were endorsed by the Procedure and Privileges Committee of the Western Australian Legislative Assembly.244 It recommended: (a) that the Parliamentary Privilege Act 1891 be amended to include a provision which ensures that parliamentary proceedings cannot be used to establish what was ‘effectively’ but not actually said outside Parliament; and (b) that the a uniform national approach be adopted through the auspices of the Standing Committee of Attorneys General.


243 Privileges Committee, Final Report on the question of privilege referred 21 July 1998 concerning Buchanan v Jennings, 1.17G, May 2005, p 9. For a commentary see – A Geddis, ‘Parliamentary privilege: quis custodiet ipsos custodes? [Winter 2005] Public Law 696.

244 Western Australia, Legislative Assembly, Procedure and Privileges Committee, Effective Repetition: Decision in Buchanan v Jennings, Report No 3, 2006.

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[96.] Wy/Fragment 100 01 - Diskussion
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This is contrary to the traditional view that party caucuses are not regarded as

proceedings in Parliament even though they occur within its precincts.304 The decision in Rata has been criticised by David McGee, Clerk of the New Zealand House of Representatives who called it a “perverse interpretation”.305 Equally critical of the approach taken in Rata is PA Joseph, for whom the decision was “without precedent or support”. According to Joseph:

Caucus meetings do not qualify as “proceedings in Parliament”. Caucus does not transact the business of the House but is a party-political meeting for coordinating strategies that may or may not relate to proceedings in Parliament…The correct view is that political meetings are not proceedings in Parliament and lack protection of parliamentary privilege.306

In Huata v. Prebble & Anor,307 this traditional view was affirmed by the New Zealand Court of Appeal. At issue in Huata was the judicial review of provisions of the disqualification legislation which placed this process in the hands of the political party caucus to be operated by its leader with the agreement of two-thirds of the caucus members. The question for the Court of Appeal was whether the Parliament should have exclusive cognizance of the ‘reasonableness’ of this process, or was this justiciable matter? In support of judicial review, the joint judgment noted that the general position is that proceedings of a party’s caucus are [not proceedings of Parliament.]


304 Parliamentary Privilege Bill 1994 (NZ), p.9.

305 D, McGee, Parliament and Caucus, New Zealand Law Journal, April, 1997.

306 P.A.Joseph, Constitutional and Administrative Law in New Zealand, 2nd ed., Brookers, 2001, pp.402-3.

307 [2004] NZCA 147.

[Seite 58]

This is contrary to the traditional view that party caucuses are not regarded as proceedings in Parliament even though they occur within its precincts.207 The decision in Rata has been criticised by David McGee, Clerk of the New Zealand House of Representatives who called it a ‘perverse interpretation’.208 Equally critical of the approach taken in Rata is PA Joseph, for whom the decision was ‘without precedent or support’. According to Joseph:

Caucus meetings do not qualify as ‘proceedings in Parliament’. Caucus does not transact the business of the House but is a party-political meeting for coordinating strategies that may or may not relate to proceedings in Parliament….The correct view is that political meetings are not proceedings in Parliament and lack protection of parliamentary privilege.209

In Huata v Prebble & Anor210 this traditional view was affirmed by the New Zealand Court of Appeal. At issue in Huata was the judicial review of provisions of the disqualification legislation which placed this process in the hands of the political party caucus to be operated by its leader with the agreement of two-thirds of the caucus members. The question for the Court of Appeal was whether the Parliament should have

[Seite 59]

exclusive cognisance of the ‘reasonableness’ of this process, or was this a justiciable matter? In support of judicial review, the joint judgment noted that

the general position is that proceedings of a party’s caucus are not proceedings of Parliament.


207 Explanatory Note, Parliamentary Privilege Bill 1994 (NZ), p 9; R v Turnbull [1958] Tas SR 80 at 84.

208 D, McGee, ‘Parliament and Caucus’, New Zealand Law Journal, April 1997, p 138. According to McGee, ‘The Master’s conclusion that caucus is now legally an integral part of Parliament in New Zealand is a radical one indeed. As he acknowledges, this is not the view of textbook writers in New Zealand who have commented on the meaning of proceedings in Parliament (McGee, Parliamentary Practice in New Zealand (2nd ed., 1994), pp 69-70 and Joseph, Constitutional and Administrative Law in New Zealand (1993), p 363). Nor is it the view in Canada (Maginot, Parliamentary Privilege in Canada (1982), p 87)’.

209 PA Joseph, Constitutional and Administrative Law in New Zealand, 2nd ed, Brookers, Wellington, 2001, pp 402-3.

210 [2004] NZCA 147.

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[97.] Wy/Fragment 029 01 - Diskussion
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Without the protection afforded by parliamentary privilege, members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself in confronting the executive and as a deliberative forum would be diminished. As Griffit [sic] and Ryle state: Parliamentary privilege, even though seldom mentioned in debates, underpins the status and authority of all Members of Parliament. Without this protection individual Members would be severely handicapped in performing their parliamentary functions, and the authority of the House itself, in confronting the Executive and as a forum for expressing the anxieties of the citizen, would be correspondingly diminished.102

Parliamentary privilege, in essence, is essential to the conduct of Parliament’s business, as it is to the maintenance of its authority and independence. At issue is the integrity and autonomy of the institution itself. While certain rights and immunities, notably those attached to the freedom of speech in parliamentary proceedings, are bestowed upon Members individually, they do not exist for their personal benefit. Parliamentary privilege exists rather to protect the Houses “themselves collectively and their members when acting for the benefit of their House, against interference, attack or obstruction”.103


102 R Blackburn, A Kennon eds, Griffith and Ryle of Parliament: Functions, Practice and Procedures, Sweet and Maxwell, 2003, p.123.

103 CR Munro, Studies in Constitutional Law, London, Butterworths, 1987, p.136.

[Seite 1]

Without the protection afforded by parliamentary privilege, Members would be handicapped in performing their parliamentary duties, and the authority of Parliament itself

[Seite 2]

in confronting the executive and as a deliberative forum would be diminished.2 As Griffith and Ryle state:

Parliamentary privilege, even though seldom mentioned in debates, underpins the status and authority of all Members of Parliament. Without this protection, individual Members would be severely handicapped in performing their parliamentary functions, and the authority of the House itself, in confronting the Executive and as a forum for expressing the anxieties of the citizen, would be correspondingly diminished.3

In essence, parliamentary privilege is essential to the conduct of Parliament’s business, as it is to the maintenance of its authority and independence. At issue is the integrity and autonomy of the institution itself. While certain rights and immunities, notably those attached to the freedom of speech in parliamentary proceedings, are bestowed upon Members individually, they do not exist for their personal benefit. Parliamentary privilege exists rather to protect the Houses ‘themselves collectively and their members when acting for the benefit of their House, against interference, attack or obstruction’.4


2 Joint Committee on Parliamentary Privilege, Report: Volume 1 – Report and Proceedings of the Committee, UK Parliament, Session 1998-99, HL Paper 43 –1, HC 214-1, p 8.

3 R Blackburn and A Kennon eds, Griffith and Ryle of Parliament: Functions, Practice and Procedures, Sweet and Maxwell 2003, p 123.

4 CR Munro, Studies in Constitutional Law, Butterworths, London, 1987, p 136.

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[98.] Wy/Fragment 153 01 - Diskussion
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[An awareness of such risks has already caused House committees to consider carefully the publication of submissions — in some cases, for example, certain details have been omitted, the] committees seeking to balance the interests of openness and accountability with the interests of individuals. Committee procedures, whether established by practice (House committees) or by resolution (Senate committees) allow for the protection of witnesses and for the rights of others. The challenge may be more in the application of the procedures rather than the procedures themselves, and in an awareness of the enhanced potential for damage to be done to individuals by the use of modern technologies, technologies which can be expected to evolve with great speed, and which may impact on the houses themselves and individual parliamentarians as well as on committees.474

Caring for the rights of others will need to be shown by Committees of Privileges, and by the relevant houses, if the community is to be expected to accept that parliament should retain the broad power to punish contempts. It is also possible that parliaments may face new forms of obstruction or difficulties which will cause them to seek changes to the law or to the arrangements concerning privilege.

12.2 Wider Legal Developments

The issue of international legal arrangements is one area.475 In Europe there have been cases where actions of national parliaments have been tested against the requirements of a larger legal framework in the form of the European Court of Human Rights. A finding of contempt by a national parliament has been held by the court to be in contravention of the Convention on Human Rights because two members who had been criticised by the person in question had not only raised the complaint in the House, they had participated in proceedings on the matter.


474 Bernard Wright, Patterns of Change-Parliamentary Privilege, http://www.aph.gov.au/HOUSE /PUBS/occpub/privileges.pd.

475 E.Campbell, Parliamentary Privilege in Australia, pp.204-8.

[Seite 23]

8.2 Wider legal developments could be relevant. The issue of international legal arrangements is one area87. In Europe there have been cases where actions of national parliaments have been tested against the requirements of a larger legal framework in the form of the European Court of Human Rights. A finding of contempt by a national parliament has been held by the court to be in contravention of the Convention on Human Rights because two members who had been criticised by the person in question had not only raised the complaint in the House, they had participated in proceedings on the matter.

[Seite 25]

An awareness of such risks has already caused House committees to consider carefully the publication of submissions — in some cases, for example, certain details have been omitted, the committees seeking to balance the interests of openness and accountability with the interests of individuals. Committee procedures, whether established by practice (House committees) or by resolution (Senate committees) allow for the protection of witnesses and for the rights of others. The challenge may be more in the application of the procedures rather than the procedures themselves, and in an awareness of the enhanced potential for damage to be done to individuals by the use of modern technologies, technologies which can be expected to evolve with great speed, and which may impact on the houses themselves and individual parliamentarians as well as on committees.

8.5 Care for the rights of others will need to be shown by Committees of Privileges, and by the relevant houses, if the community is to be

[Seite 26]

expected to accept that parliament should retain the broad power to punish contempts97. It is also possible that parliaments may face new forms of obstruction or difficulties which will cause them to seek changes to the law or to the arrangements concerning privilege.


87 Campbell , op cit, pp 204-8.

97 Earlier this year a case for the substantial transfer of the penal jurisdiction to the courts on the grounds that determination of such matters by houses of parliament was not consistent with the principles of procedural fairness was set out in advice provided to the House Committee of Privileges- Professors Lindell and Carney, op cit.

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[99.] Wy/Fragment 183 01 - Diskussion
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Moreover, in parliaments with a majority that is obedient to the government, requests for the lifting of inviolability are usually accepted without any resistance, especially if they concern opposition parliamentarians, and the only protection inviolability then affords just covers the time the parliament needs to lift the immunity of the parliamentarian concerned, sometimes just enough to enable the parliamentarian concerned to leave the country to avoid arrest. A good example is the case of the opposition leader in Cambodia, Mr. Sam Rainsy, whose immunity was lifted in February 2005 when he went into exile until his pardoning by the King and return to the country a year later.550

Moreover, parliamentary privilege may be of little use if the law enforcement officials are unfamiliar with this institution, fail to respect parliament and its members, especially if they belong to the opposition, and know that they will in any event enjoy impunity for arbitrary actions even if they concern parliamentarians. Examples abound [sic] Suffice to mention the situation that prevailed in Zimbabwe in the context of the 2000 parliamentary and 2002 presidential elections, when scores of opposition parliamentarians were arbitrarily arrested and detained for various periods of time, some of them being beaten up and even tortured.551

Likewise, courts may not always be aware of the privileges attached to the parliamentary office - even though in most countries the privilege of freedom of speech is part of the general and public law and must be judicially noticed. Therefore, they may fail to examine whether or not parliamentary immunity was properly lifted and they are competent to pursue a case. Moreover, in a country [with a weak judiciary and deficient rule of law, parliamentarians cannot expect more protection from tribunals than can members of the public.552]


550 Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf.

551 Details may be found in the report on the IPU mission to Zimbabwe, March/April 2004.

[552 See, Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf.]

[Seite 23]

Moreover, in parliaments with a majority that is obedient to the government, requests for the lifting of inviolability are usually accepted without any resistance, especially if they concern opposition parliamentarians, and the only protection inviolability then affords just covers the time the parliament needs to lift the immunity of the parliamentarian concerned, sometimes just enough to enable the

[Seite 24]

parliamentarian concerned to leave the country to avoid arrest. A good example is the case of the opposition leader in Cambodia, Mr. Sam Rainsy, whose immunity was lifted in February 2005 when he went into exile until his pardoning by the King and return to the country a year later.

Moreover, parliamentary immunity may be of little use if the law enforcement officials are unfamiliar with this institution, fail to respect parliament and its members, especially if they belong to the opposition, and know that they will in any event enjoy impunity for arbitrary actions even if they concern parliamentarians. Examples abound. Suffice to mention the situation that prevailed in Zimbabwe in the context of the 2000 parliamentary and 2002 presidential elections, when scores of opposition parliamentarians were arbitrarily arrested and detained for various periods of time, some of them being beaten up and even tortured.47

Likewise, courts may not always be aware of the privileges attached to the parliamentary office - even though in most countries the privilege of freedom of speech is part of the general and public law and must be judicially noticed. They may therefore fail to examine whether or not parliamentary immunity was duly lifted and they are competent to pursue a case. Moreover, in a country with a weak judiciary and deficient rule of law, parliamentarians cannot expect more protection from tribunals than can members of the public.


47 Details may be found in the report on the IPU mission to Zimbabwe, March/April 2004.

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[100.] Wy/Fragment 152 09 - Diskussion
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12.1 The Changes of Discharging Responsibilities’ Way

The way in which parliaments and parliamentarians discharge their responsibilities is also likely to be relevant to developments in relation to privilege. The issue of misuse of privilege, ether [sic!] by members or by others such as committee witnesses, may continue to receive attention. Modern technology assists greatly in the dissemination of details of parliamentary activities. There are many positive aspects in this:473 The wider community is informed more easily and more quickly of parliament’s work. One negative aspect is however that greater damage can be done because a false or reckless attack or the publication of personal details is also carried quickly and to a much wider audience, and false or unreasonably damaging published electronically can continue to “live” in databases and systems even if it is withdrawn or corrected. An awareness of such risks has already caused House committees to consider carefully the publication of submissions — in some cases, for example, certain details have been omitted, the [committees seeking to balance the interests of openness and accountability with the interests of individuals.]



473 Bernard Wright, Patterns of Change-Parliamentary Privilege, http://www.aph.gov.au/HOUSE/ PUBS/occpub/privileges.pd.

8.4 The way in which parliaments and parliamentarians discharge their responsibilities is also likely to be relevant to developments in relation to privilege. The issue of misuse of privilege, whether by members or by others such as committee witnesses, may continue to receive attention. Modern technology assists greatly in the dissemination of details of parliamentary activities. There are many positive aspects in this: the wider community is informed more easily and more quickly of parliament’s work. One negative aspect is however that greater damage can be done because a false or reckless attack or the publication of personal details is also carried quickly and to a much wider audience, and false or unreasonably damaging published electronically can continue to ‘live’ in databases and systems even if it is withdrawn or corrected. An awareness of such risks has already caused House committees to consider carefully the publication of submissions — in some cases, for example, certain details have been omitted, the committees seeking to balance the interests of openness and accountability with the interests of individuals.
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[101.] Wy/Fragment 014 01 - Diskussion
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An indication of the political and parliamentary sensitivity of these matters is given in the statement of one Senator: “To gnaw at inviolability is to hand over parliamentarians to the vengeance and arbitrary decisions of those who, with complete impunity, profit from the weakness of a state terrorised by excessive media coverage in order to set themselves up as a power independent of the law itself and to launch a concerted attack on the authorities and principles of the Republic. One can even bar parliamentarians from attending sittings on the grounds that they have to answer judges’ summons”.50

2.2.3 Punishment of Offences

Despite their authority in matters such as the immunity of members’ persons, the houses of the French Parliament have never enjoyed the broad capacity to punish offences (contempt) possessed by the House of Commons.51

2.2.4 The French influence

As would be expected, the key provisions of the French model appear to have had their greatest influence in continental Europe and in former French colonies.


[46 Mme Ponceau, Privilges and Immunities in Parliament, The Association of Secretaries General of Parli-aments (ASGP) meeting, 17-19 October 2005, http://www.asgp.info/ Resources/Data/Documents/ MSUMEOMVPXKTACUJDEWNDNORP OBTYP.pdf.]

50 Id.

51 Marc Van der Hulst, The Parliamentary Mandate, IPU, 2000, pp.129-30. The German Constitution, the Basic Law or Grundgesetzes,

4.15 An indication of the political and parliamentary sensitivity of these matters is given in the statement of one Senator:

To gnaw at inviolability is to hand over parliamentarians to the vengeance and arbitrary decisions of those who, with complete impunity, profit from the weakness of a state terrorised by excessive media coverage in order to set themselves up as a power independent of the law itself and to launch a concerted attack on the authorities and principles of the Republic. One can even bar parliamentarians from attending sittings on the grounds that they have to answer judges’ summons57.

Punishment of offences

4.16 Despite their authority in matters such as the immunity of members’ persons, the houses of the French Parliament have never enjoyed the broad capacity to punish offences (contempts) possessed by the House of Commons58.

The French influence

4.17 As would be expected, the key provisions of the French model appear to have had their greatest influence in continental Europe and in former French colonies.


57 ASGP,op cit p 70.

58 Van der Hulst, op cit, p 129-30.

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[102.] Wy/Fragment 013 01 - Diskussion
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In the event, however, court decisions have recognised the protection of witnesses.44

2.2.2 Freedom from Arrest

In France the immunity of the member’s person has been recognized since the formation of the National Assembly, on 23 June, 1789 the Assembly declaring “the person of each deputy shall be inviolable”. 45 The justification of such a provision is the protection of deputies from actions by the crown/executive.46 Thinking on the extent and application of the immunity has apparently developed considerably, in the last several years particularly with regard to the interests (and tolerance) of others.47

One constant element has remained: Parliament has had a role in the application of the immunity. In essence, and other than in criminal cases, where a member is captured red-handed or in respect of final sentencing, parliamentary approval is required for the arrest or detention of a member.48 The approval is given by the Bureau (Managing Group) of the House. One advantage of this is that confidentiality may be maintained, at least for a period.49


44 Marc Van der Hulst, The Parliamentary Mandate, IPU, 2000, pp. 67-8.

45 Marc Van der Hulst, The Parliamentary Mandate, IPU, 2000, p.79.

46 Mme Ponceau, Privilges and Immunities in Parliament, The Association of Secretaries General of Parliaments (ASGP) meeting, 17-19 October 2005, http://www.asgp.info /Resources/Data/Documents/ MSUMEOMVPXKTACUJDEWNDNORP OBTYP.pdf.

47 Id.

48 Id.

49 Id

In the event, however, court decisions have recognised the protection of witnesses51.

Inviolability

4.13 In France the immunity of the member’s person has been recognised since the formation of the National Assembly, on 23 June 1789 the Assembly declaring ‘the person of each deputy shall be inviolable’52. The justification of such a provision was the protection of deputies from actions by the crown/executive53. Thinking on the extent and application of the immunity has apparently developed considerably, in the last several years particularly with regard to the interests (and tolerance) of others54.

4.14 One constant element has remained: Parliament has had a role in the application of the immunity. In essence, and other than in criminal cases, where a member is captured red-handed or in respect of final sentencing, parliamentary approval is required for the arrest or detention of a member55. The approval is given by the Bureau (Managing Group) of the House. One advantage of this is that confidentiality may be maintained, at least for a period56.


51 Van der Hulst, op cit, pp 67-8.

52 ASGP, op cit, p 67; Van der Hulst op cit, p 79.

53 ASGP, op cit, pp 67-9. 54 . ASGP op cit, p 67.

54 ASGP op cit, p 67.

55 ASGP op cit, p 69.

56 ASGP op cit, p 70.

Anmerkungen

Kein Hinweis auf die Quelle.

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(SleepyHollow02), Hindemith

[103.] Wy/Fragment 184 01 - Diskussion
Bearbeitet: 11. September 2013, 21:02 Graf Isolan
Erstellt: 11. September 2013, 16:46 (Singulus)
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[Moreover, in a country] with a weak judiciary and deficient rule of law, parliamentarians cannot expect more protection from tribunals than can members of the public.552

The above shows that the general human rights context and the respect for human rights prevailing in a country has a major impact on the ability of parliamentarians, and particularly opposition members, to carry out their mandate, notwithstanding their parliamentary immunity which in such situations may become quite inoperative. One must at the same time note, however, that parliament is a guardian of human rights and thus largely responsible for adopting the laws required to protect and promote human rights and for ensuring that they are implemented and create an environment conducive to human rights. We are thus faced with a vicious circle:553 a weak parliament (weak also because of the failure of immunity to operate) may not be able or even willing to carry out an appropriate oversight function and thus ensure respect for human rights; and this in turn prevents it from acquiring a stronger position. In such a situation, the prospect for a parliament to contribute meaningfully to conflict prevention, conflict settlement and recovery is dim indeed. Any measures designed to improve such a state of affairs must include efforts not only to strengthen the opposition but also to convince members of the majority to carry out their oversight function effectively. A strong and well-understood privilege regime is necessary to this end.


552 See, Background Paper prepared by the Inter-Parliamentary Union, Parliamentary Immunity, http://www.gopacnetwork.org/Docs/Global/IPU%20-%20UNDP%20Immunity%20Paper.pdf.

553 See, Id.

Moreover, in a country with a weak judiciary and deficient rule of law, parliamentarians cannot expect more protection from tribunals than can members of the public.

The above shows that the general human rights context and the respect for human rights prevailing in a country has a major impact on the ability of parliamentarians, and particularly opposition members, to carry out their mandate, notwithstanding their parliamentary immunity which in such situations may become quite inoperative. One must at the same time note, however, that parliament is a guardian of human rights and thus largely responsible for adopting the laws required to protect and promote human rights and for ensuring that they are implemented and create an environment conducive to human rights. We are thus faced with a vicious circle: a weak parliament (weak also because of the failure of immunity to operate) may not be able or even willing to carry out an appropriate oversight function and thus ensure respect for human rights; and this in turn prevents it from acquiring a stronger position. In such a situation, the prospect for a parliament to contribute meaningfully to conflict prevention, conflict settlement and recovery is dim indeed. Any measures designed to improve such a state of affairs must include efforts not only to strengthen the opposition but also to convince members of the majority to carry out their oversight function effectively. A strong and well understood immunities regime is necessary to this end.

Anmerkungen

Ganzseitige wörtliche Übernahme nicht als solche gekennzeichnet.

Sichter
(Singulus), Graf Isolan

[104.] Wy/Fragment 012 01 - Diskussion
Bearbeitet: 11. September 2013, 20:50 Hindemith
Erstellt: 10. September 2013, 17:21 (SleepyHollow02)
Fragment, Gesichtet, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wright 2007, Wy

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Members of the French Parliament have long been immune from action on account of their statements in Parliament. The relevant term is best translated into English in this context as ‘non-accountability’.39 The Clerk of the French Senate has observed that this immunity was a legacy of a tradition created over past centuries by the British Parliament.40 The effect of the immunity is that members cannot be prosecuted or tried elsewhere on account of their statements or votes in Parliament.41 It has been set out in successive French constitutions, Article 26 of the 1958 Constitution providing: No Member of Parliament may be prosecuted, searched for, detained or be subject to judgment on the basis of opinions of opinions expressed or votes cast by him in the exercise of his duties.42 Courts have been required to determine issues such as whether the repetition outside parliament by members, or by broadcast, of remarks made in Parliament are protected by force of this provision (they have been found not to be protected).43

It is notable that the form of words “…No Member may be prosecuted…” is in contrast to the Bill of Rights with its reference to the activity “proceedings in Parliament”. This may mean that questions such as whether other persons (for example committee witnesses) were covered by the immunity were more open [there.]


39 Mme Ponceau, Privilges and Immunities in Parliament, The Association of Secretaries General of Parliaments (ASGP) meeting 17-19, October, 2005, http://www.asgp.info/ Resources/Data/Documents/ MSUMEOMVPXKTACUJDEWNDNORPOBTYP.pdf.

40 Id.

41 Id.

42 Id.

43 Id.

4.11 Members of the French Parliament have long been immune from action on account of their statements in Parliament. The relevant term is best translated into English in this context as ‘non-accountability’46. The Clerk of the French Senate has observed that this immunity was a

[Seite 11]

legacy of a tradition created over past centuries by the British Parliament47.

The effect of the immunity is that members cannot be prosecuted or tried elsewhere on account of their statements or votes in Parliament48. It has been set out in successive French constitutions, article 26 of the 1958 constitution providing:

No Member of Parliament may be prosecuted, searched for, detained or be subject to judgment on the basis of opinions of opinions expressed or votes cast by him in the exercise of his duties49.

Courts have been required to determine issues such as whether the repetition outside parliament by members, or by broadcast, of remarks made in Parliament are protected by force of this provision (they have been found not to be protected)50.

4.12 It is notable that the form of words …’No Member may be prosecuted…’ is in contrast to the Bill of Rights with its reference to the activity ‘proceedings in Parliament’. This may mean that questions such as whether other persons (for example committee witnesses) were covered by the immunity were more open there.


46 At a conference in 2005 the Secretary-General of the French Senate, Mme Ponceau presented a paper on parliamentary immunities. Unfortunately for a time the translators used the term ‘parliamentary irresponsibility’ to describe this immunity: ASGP meeting 17-19 October 2005, minutes pp 57-70.

47 Ibid, p 64.

48 Ibid, p 64.

49 Ibid, p 59.

50 Ibid, p 65.

Anmerkungen

Kein Hinweis auf die Quelle.

Sichter
(SleepyHollow02), Hindemith

[105.] Wy/Fragment 007 01 - Diskussion
Bearbeitet: 11. September 2013, 20:45 Hindemith
Erstellt: 10. September 2013, 18:30 (Graf Isolan)
BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, Wright 2007, Wy

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[Persons punished by the House have] included members and others, including sheriffs, magistrates and judges.19 This capacity was seen as very important to the House’s ability to defend the Parliament. Its significance lies in the breadth of offences which could be punished: there was no list or closed set of actions which could be subject to punishment by the House. This power has been described as a “quintessentially British institution”.20

2.1.3 The British Influence

Principal features of the British model are seen in many parliaments, but primarily in nations which were once British colonies or possessions.21 This group includes nations as diverse as the India, the United States of America, New Zealand, Canada, Malaysia, Singapore, South Africa and Malta.22 In some cases the constitutional law itself sets out similar provisions, and in others there are links in constitutional and other laws. In some cases there have been no such explicit provisions or links, and at common law the provisions available were limited to those of ‘reasonable necessity’.23 Considerable adaptation has taken place in many jurisdictions.

The parliament of Scotland and the National Assembly for Wales, two of the most recently established parliaments, are interesting examples of adaptation.


19 May, 23rd ed., (2004), p.92.

20 Marc Van der Hulst, The Parliamentary Mandate, IPU, 2000, p.129.

21 Marc Van der Hulst, The Parliamentary Mandate, IPU, 2000, pp.66, 130.

22 Bernard Wright, Patterns of Change-Parliamentary Privilege, http://www.aph.gov.au/ HOUSE/PUBS/occpub/privileges.pdf.

23 Gareth Griffith, Principles, Personalities, Politics: Parliamentary Privilege Cases in NSW, http://www.parliament.nsw.gov.au/ prod/parlment/publications.nsf/ 0/ABD1B841CB387720CA 256ECF000CAADE/$File/bg01-04.pdf.

[Seite 9]

Persons punished by the House have included members and others, including sheriffs, magistrates and judges39. This capacity was seen as very important to the House’s ability to defend the Parliament. For the purposes of this paper, its significance lies in the breadth of offences which could be punished: there was no list or closed set of actions which could be subject to punishment by the House. This power has been described as a ‘quintessentially British institution’40 (and see 6.11-12 below for recommended changes).

The British influence

4.8 Key features of the British model are seen in many parliaments, but primarily in nations which were once British colonies or possessions41. This group includes nations as diverse as the India, the United States of America, New Zealand, Canada, Malaysia, Singapore, South Africa and Malta. In some cases the constitutional law itself sets out similar provisions42, in others there are links in constitutional and other laws43. In some cases there have been no such explicit provisions or links, and at common law the provisions available were limited to those of

[Seite 10]

‘reasonable necessity’44. Considerable adaptation has taken place in many jurisdictions (and see 5.3-5.7 below).

4.9 The parliament of Scotland and the National Assembly for Wales, two of the most recently established parliaments, are interesting examples of adaptation.


39 May, op cit p 92.

40 Van der Hulst, op cit, p 129.

41 Van der Hulst, op cit, pp 66, 130.

42 US Constitution, Article 1(6).

43 For example Australia, Canada, New Zealand, India, and Victoria, South Australia and Western Australia.

44 For example, New South Wales; and see Campbell, op cit, pp 2, 4; and Gareth Griffith Principles, Personalities, Politics; Parliamentary Privilege Cases in NSW.

Anmerkungen

Art und Umfang der Übernahme bleiben ungekennzeichnet.

Sichter
(Graf Isolan), Hindemith

[106.] Wy/Fragment 006 01 - Diskussion
Bearbeitet: 11. September 2013, 20:41 Hindemith
Erstellt: 10. September 2013, 16:47 (Graf Isolan)
Fragment, Gesichtet, KomplettPlagiat, SMWFragment, Schutzlevel sysop, Wright 2007, Wy

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[The provisions of Article 9: 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 confirmed Parliament’s claims, and had the formal and explicit agreement of the Crown. The provision has been characterised as much a political settlement as a statutory rule and as a safeguard in the separation of powers.14

Other immunities of members Freedom from arrest for members of the British Parliament was recognised as long ago as 1340.15 The immunity is limited to civil matters and its reach has been clarified and qualified by legislation.16 This immunity is also part of the law of the land and as such it cannot be waived. Another ‘personal’ privilege enjoyed by British members is the exemption from compulsory attendance as witnesses, whether in civil or criminal proceedings.17 The general immunity of members from jury service was ended by legislation in 2003.18

2.1.2 Ability to Punish Contempt

Each House of the British Parliament has long held the power to try contempt. This power is said to derive from the ‘medieval concept of Parliament as primarily a court of justice. As such it was more readily recognized in respect of the House of Lords, but the House of Common [sic] was recognized as having the power to fine and imprison offenders. Persons punished by the House have [included members and others, including sheriffs, magistrates and judges.19]


14 H.Evans ed., Odgers’Australian Senate Practice, 11th ed., Department of the Senate 2004, p.33.

15 May, 23rd ed., (2004), p.83.

16 May, 23rd ed., (2004), p.83.

17 May, 23rd ed., (2004), p.125.

18 May, 23rd ed., (2004), p.125.

[19 May, 23rd ed., (2004), p.92.]

[Seite 7]

The provisions of Article 9:

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

confirmed Parliament’s claims, and had the formal and explicit agreement of the Crown. The provision has been characterised as much

[Seite 8]

a political settlement as a statutory rule28 and as a safeguard in the separation of powers29.

[...]

Other immunities of members

4.6 Freedom from arrest for members of the British Parliament was recognised as long ago as 134033. The immunity is limited to civil matters and its reach has been clarified and qualified by legislation34. This immunity is also part of the law of the land and as such it cannot be waived. Another ‘personal’ privilege enjoyed by British members is

[Seite 9]

the exemption from compulsory attendance as witnesses, whether in civil or criminal proceedings35. The general immunity of members from jury service was ended by legislation in 200336 (and see 6.10 below for recommended changes).

Ability to punish contempts

4.7 Each House of the British Parliament has long held the power to try contempts. This power is said to derive from the ‘medieval concept of Parliament as primarily a court of justice’37. As such it was more readily recognised in respect of the House of Lords, but the House of Commons was recognised as having the power to fine and imprison offenders38. Persons punished by the House have included members and others, including sheriffs, magistrates and judges39.


28 McGee, op cit, p 618, 625-. Mr McGee has also commented on the relatively recent prominence given to Article 9, and on the use of ‘parliamentary material’ in courts in The Scope of Parliamentary Privilege, New Zealand Law Journal, March 2004, pp. 84-87. Mr McKay (then) Clerk Assistant in the House of Commons also commented on the emphasis on Art 9 in evidence to the UK joint select committee on parliamentary privilege and the effects this has had - HL 43, HC 214 II, pp 21-2.

29 Odgers, op cit, p 33; relevant also in this regard in the US – evidence of Mr Johnson, Parliamentarian of the House of Representatives, to UK joint select committee – HL 43, HC 214 II, p 234.

33 May op cit, p 83.

34 May op cit, p 83.

35 May op cit, p 125.

36 May op cit, p 125.

37 May op cit p 92.

38 May op cit p 92.

39 May, op cit p 92.

Anmerkungen

Kein Hinweis auf eine Übernahme. Eine Zwischenüberschrift wurde von Wy nicht als solche erkannt und taucht daher unmotiviert im Fließtext auf.

Sichter
(Graf Isolan), Hindemith

[107.] Wy/Fragment 097 01 - Diskussion
Bearbeitet: 11. September 2013, 20:38 Graf Isolan
Erstellt: 11. September 2013, 20:06 (Hindemith)
BauernOpfer, Fragment, Gesichtet, SMWFragment, Schutzlevel sysop, Van der Hulst 2000, Wy

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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.

Sichter
(Hindemith) Agrippina1

[108.] Wy/Fragment 085 01 - Diskussion
Bearbeitet: 11. September 2013, 20:37 Graf Isolan
Erstellt: 10. September 2013, 22:46 (Hindemith)
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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.

Anmerkungen

Die vorhandenen Quellenverweise machen nicht deutlich, dass die gesamte Seite wörtlich abgeschrieben ist.

Sichter
(Hindemith), SleepyHollow02

[109.] Wy/Fragment 084 01 - Diskussion
Bearbeitet: 11. September 2013, 20:36 Graf Isolan
Erstellt: 10. September 2013, 22:38 (Hindemith)
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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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(Hindemith), SleepyHollow02

[110.] Wy/Fragment 083 01 - Diskussion
Bearbeitet: 11. September 2013, 20:34 Graf Isolan
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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).

Anmerkungen

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(Hindemith), SleepyHollow02

[111.] Wy/Fragment 082 07 - Diskussion
Bearbeitet: 11. September 2013, 20:33 Graf Isolan
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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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(Hindemith), SleepyHollow02

[112.] Wy/Fragment 005 05 - Diskussion
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2 Two Major Systems of Parliamentary Privilege

2.1 The British Model

The features of the law of privilege applying in the United Kingdom have evolved over a very long time. Actions by each House of the Parliament, monarch governments and courts have created a significant body of law, and a body of law which naturally reflects the political history of the country.

2.1.1 Freedom of Speech

The privilege of freedom of speech is set out most famously in Article 9 of the Bill of Rights (1689)., A privilege of freedom of speech, however, appears to have been enjoyed by the House of Commons since at least the later years of the 15th century.12 Though the immunity is now often thought of in terms of the protection it gives members and other participants in ‘proceedings in Parliament’ from being sued for defamation, its existence grew out of protracted conflict between the Parliament and the Crown,13 and the conflict in which the right of the Crown to cause members to be called to account for their statements in Parliament was disputed and resisted. The provisions of Article 9: 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 confirmed Parliament’s claims, and had the formal and explicit agreement of the Crown.]


11 Robert Myttenaere, Report of Parliamentary Privilege, adopted at the Moscow Session, September, 1998.

12 May, T.E., Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 23rd ed., London, 2004, p.79.

13 See, the Section of “Origin of Parliamentary Privilege” in the Paper.

4. Privilege — two models

[...]

The British approach

4.2 The features of the law of privilege applying in the United Kingdom have evolved over a very long time. Actions by each House of the Parliament, monarchs/governments and courts have created a significant body of law, a body of law which naturally reflects the political history of the country.

Freedom of speech

4.3 The privilege of freedom of speech is set out most famously in Article 9 of the Bill of Rights (1689), however a privilege of freedom of speech appears to have been enjoyed by the House of Commons since at least the later years of the 15th century26. Although the immunity is now often thought of in terms of the protection it gives members and other participants in ‘proceedings in Parliament’ from being sued for defamation, its existence grew out of protracted conflict between the Parliament and the Crown,27 conflict in which the right of the Crown to cause members to be called to account for their statements in Parliament was disputed and resisted. The provisions of Article 9:

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

confirmed Parliament’s claims, and had the formal and explicit agreement of the Crown.


26 May op cit, p 79.

27 May op cit, pp 79-82.

Anmerkungen

Kein Hinweis auf eine Übernahme.

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(Graf Isolan), SleepyHollow02

[113.] 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).

Anmerkungen

Der vorhandene Quellenverweis macht nicht deutlich, dass hier weitläufig wörtlich übernommen wurde.

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(Hindemith), SleepyHollow02

[114.] Wy/Fragment 008 01 - Diskussion
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[The] laws establishing these bodies do not tie their privileges and immunities to Westminster, but instead of setting out in detail the provisions which apply. In each case, statements made during proceedings in parliament are absolutely privileged for the purposes of defamation: that they cannot form the basis of an action in defamation. But actions such as incitement to racial hatred are not protected. Proceedings are subject to the law of contempt of court (that is, conduct that tends to interfere with the course of justice in certain proceedings), although the usual provision of strict liability for contempt of court does not apply to publications made in the course of proceedings in relation to a bill or subordinate legislation, or to the extent that they consist of a fair and accurate report of proceedings, made in good faith. These legislative bodies have not been given the broad power to punish contempt.24

2.1.4 Parliamentary Privilege in British Model’s Nations

2.1.4.1 The United States

In Article I, Section 6, the United States Constitution (1787) provides that Members of Congress: Shall in all cases, except Treason, Felony, and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other place.


24 Government of Wales Act 1998, S.77; Scotland Act 1998, S. 41; Scottish Parliament Business Bulletin,38/1999, http://www.scottish.parliament.uk; The ACT Legislative Assembly, another relatively recent parlia-ment, has not been given the power to punish contempts.

[Seite 10]

The laws establishing these bodies do not tie their privileges and immunities to Westminster, but instead set out in detail the provisions which apply. In each case, statements made during proceedings in parliament are absolutely privileged for the purposes of defamation: that is they cannot form the basis of an action in defamation. But actions such as incitement to racial hatred are not protected. Proceedings are subject to the law of contempt of court (that is, conduct that tends to interfere with the course of justice in certain proceedings), although the usual provision of strict liability for contempt of court does not apply to publications made in the course of proceedings in relation to a bill or subordinate legislation, or to the extent that they consist of a fair and accurate report of proceedings, made in good faith. These legislative bodies have not been given the broad power to punish contempts45.

[Seite 13]

5. Adaptation of traditional provisions

[...]

The USA

[...] Article 1(6) provided:

The Senators and Representatives….. shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other place.


45 Government of Wales Act 1998, s 77; Scotland Act 1998, s 41; Scottish Parliament Business Bulletin, 38/1999 (available at www.scottish.parliament.uk). The ACT Legislative Assembly, another relatively recent parliament, has not been given the power to punish contempts.

Anmerkungen

Kein Hinweis auf eine Übernahme.

Sichter
(Graf Isolan), SleepyHollow02

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