MARCH 10 — Joseph Maingot was Law Clerk and Parliamentary Counsel of Canada’s House of Commons and Member of the Law Reform Commission of Canada.
He died on October 23, 2023 aged 92, leaving behind two classic references: Parliamentary Privilege in Canada (McGill-Queen’s University Press 1997) and Parliamentary Immunity in Canada (LexisNexis Canada 2016).
In the first of the classic references, Maingot called parliamentary privilege as a branch of the law of Parliament – that is, it is part of the general public law of the country relating to the customs, practices, procedures, privileges, and powers of each House of Parliament and its Members.
Parliamentary privilege is a fundamental right necessary for the exercise of constitutional functions. It applies to anything an MP “may say or do within the scope of his duties in the course of parliamentary business.”
In any constitutionally governed country, the privileges, immunities and powers of its legislature as a body and the rights and immunities of the Members of such bodies are matters of primary importance.
No legislative assembly would be able to discharge its duties with efficiency or assure its independence and dignity unless it had adequate powers to protect itself and its members.
In Chapter 12 of the book, Maingot called each House of Parliament a “court” with respect to its own privileges and dignity and the privileges of each MP. The purpose is “to maintain the respect and credibility due to and required of each House in respect of these privileges, to uphold its powers, and to enforce the enjoyment of the privileges” of each MP.
A genuine question of privilege is therefore a serious matter not to be reckoned with lightly.
Any claim that privilege has been infringed needs to be raised in the House by means of a “question of privilege”, which is a matter for the House to determine. The procedure with respect to raising a question of privilege is governed by both the Standing Orders and practice.
An MP wishing to raise a question of privilege in the House must first convince the Speaker that his or her concern is prima facie – at first glance – a question of privilege.
The Speaker’s duty then is limited to deciding whether the matter is of such a character as to entitle the MP who has raised the question to move a motion which will have priority over Orders of the Day.
According to Maingot, a question of privilege must satisfy two conditions before it can be accorded precedence over the Orders of the Day. First, the Speaker must be convinced that a prima facie case of breach of privilege has been made. Second, the matter must be raised at the earliest opportunity.
If in the opinion of the Speaker the conditions have been met, the Speaker will inform the House that the matter is entitled to take precedence over the notices of motions and Orders of the Day standing on the Order Paper. In other words, the House must take the matter into immediate consideration.
As soon as the Speaker has so informed the House, the MP raising the matter is immediately allowed to move a motion.
The Speaker does not therefore decide whether a breach of privilege has in fact been committed. Whether there is a breach or not, it can only be decided by the House itself.
As Maingot put it, “ultimately it is the House which decides whether a breach of privilege has been committed.”
A question of privilege arising out of the proceedings during the course of a sitting may be raised immediately without notice, but at the earliest opportunity. The Speaker can reject questions of privilege when they are not raised at the earliest opportunity – or at the first opportunity, as it is said.
Yesterday (March 9), Communications Minister Fahmi Fadzil came under fire after he said on Friday (March 8) that the Cabinet had agreed to contact Dewan Rakyat Speaker Tan Sri Johari Abdul over some allegations made by Opposition MPs during the debate on the Motion of Thanks for the Royal Address that could mislead the House.
If there were allegations that could mislead the Dewan Rakyat, were questions of privilege raised at the first opportunity?
