A report by Transparency International Bangladesh (TIB), titled "Parliament Watch," has been creating a great deal of commotion both in and outside the Parliament. Our Hon'ble Prime Minister has discovered a conspiracy behind the report to destroy democracy and transfer power to unelected persons. The Speaker has found it contemptuous. The information and civil aviation ministers have rejected the report. Some senior parliamentarians have not only rejected it, but have also recommended convening the Parliamentary Standing Committee on Privileges and summoning TIB before it. Some lawmakers have even proposed to stop TIB from operating.

Based on newspaper scanning and focus group discussions, which are acceptable research methodology, the TIB report of October 14, it may be recalled, concluded that 97% of our lawmakers from 149 constituencies were involved in illegal and unethical activities. Despite its rejection by the ruling party, this conclusion has been affirmed by subsequent on-line newspaper surveys. For example, 93% of Prothom Alo's 3,855 readers participating in the survey agreed with TIB's conclusion (October 15). Similarly, 72% of 22,605 readers of Jugantor, on the same day, concurred with it.

Notwithstanding the blaming of TIB, it is clear that many citizens believe that most of our lawmakers are engaged in illegal activities; TIB has merely been the messenger of the "bad news." In our system, the Privilege Committee is vested with the responsibility of ensuring the accountability of MPs and upholding the prestige of the Parliament. Thus, we agree with the senior parliamentarians that the Privilege Committee must be made active immediately. The popular perception that most of our MPs are engaged in unwarranted activities is the result of the ineffectiveness of the Privilege Committee and failure of the Parliament to police the behaviour of its own members.

Article 76(1) of our Constitution specifically provides for two parliamentary standing committees: Public Accounts Committee and Committee on Privileges. Thus, Privilege Committee is an important Committee and Article 78 of the Constitution has specific provisions for it. The effectiveness of this Committee in essence determines the ability of the Parliament to regulate its procedures, conduct its business and maintain order in Parliament, and thereby ensure institutional accountability and protect its own reputation.

What is meant by parliamentary privilege? What specifically are the functions of the Privilege Committee?

The oldest and most acceptable definition parliamentary privilege is given by Erskine May (Treatise on the Law, Privileges, Proceedings and Usage of Parliament (23rd ed.): "Parliamentary privilege is the sum of the peculiar rights enjoyed by each House collectively … and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies or individuals. Thus, privilege, though part of the law of the land, is to a certain extent an exemption from the general law."

These unique rights can be grouped into two categories: (1) those relating to immunities of the parliamentarians, and (2) those concerning the ability of the Parliament to control its own procedures. Rights relating to immunities are: (a) right of expression; (b) immunity from arrest from civil cases; (c) absolving from jury duty; (d) absolving from the obligation to be witnesses; and (d) right to publish documents with libelous contents.

The Parliament's power to control its own procedures include: (a) right to impose discipline; (b) power to regulate its procedures and the conduct of business; (c) power to control attendance and ensure effectiveness of lawmakers; (d) power to investigate, call witnesses and require production of documents; and (e) administer oath to witnesses. These represent Parliament's power to punish any individual for breach of privileges, including expelling its members.

Breaching the privileges of Parliament is known as contempt of Parliament. Such contempt can be perpetrated by ordinary citizens, any institution or by parliamentarians themselves.

A citizen may be cited for contempt of Parliament if she/he fails to respond to a summon of the Parliament or any of its Committees, or fails to produce documents. An institution can be accused of contempt if it undermines the immunities of lawmakers. MPs themselves can be guilty of contempt of Parliament if they lower the prestige of the Parliament in the eyes of the public through undesirable behaviour. Corruption, indiscipline and other acts of illegal and unethical conduct of lawmakers can lower the prestige of the Parliament. The Privilege Committee has the responsibility to stand guard against the breach of parliamentary privileges and to recommend actions against contempt of Parliament.

Many members of the ninth Parliament have been accused of involvement in unwarranted activities, in response to which the Privilege Committee or the Parliament have failed to take any action. A glaring example is the case of Barrister Jamiruddin Sircar. At the beginning of the present Parliament, it may be recalled, a Special Parliamentary Committee was formed with much fanfare to investigate the charges of corruption against former speaker Barrister Jamiruddin Sicar and former Chief Whip Late Kondoker Delwar Hossain. Although the Committee found evidence of corruption against the two, the Parliament refused to expel or take any action against Barrister Sircar, who is presently an MP. Instead, the Parliament referred the matter to the ACC, which amounted to failure to discipline one of its own.

In addition, according to media reports, 18 MPs were allotted plots by Rajuk based on false affidavits sworn by them (Prothom Alo, January 27, 2010). Swearing false affidavit is a criminal act, but no action was taken against the lawmakers who, in committing this act, had become lawbreakers. Many MPs became members of Parliamentary Standing Committees, ignoring conflicts of interest in some cases, and have used such membership to promote their own interests (Prothom Alo, February 6, 2010). Some MPs have been accused of land grabbing, defying the prevailing laws and rules (such as doing business with the government, constructing buildings without the required permit from Rajuk, etc.) and beating up government functionaries -- all of which amount to contempt of Parliament. Others have been accused of murder, trading of tax free cars ("gaari banijya"), accepting money for giving employment ("niog banijya"), and other undesirable activities. Still others have been accused of swearing false affidavits before their elections, and some are holding on to their membership of the Parliament despite losing their eligibility to remain as MPs. Even though such behaviour obviously undermines the reputation of the Parliament, the Privilege Committee has been totally silent about it.

It may be pointed out that, even though our Parliament has failed to take any action against any of its members, the situation is very different in India. Punishing and even expelling lawmakers are regular phenomena in India. For example, 11 members of Lok Sabha and Rajya Sabha were expelled from both Houses in 2005 for engaging in illegal activities.

One hurdle against punishing anyone against contempt of Parliament is the absence of an enabling legislation. Articles 76(3) and 78(5) of our Constitution require the enactment of a law on parliamentary privilege, which has not taken place in the last 40 years. However, the absence of such law cannot be used as an excuse for not taking punitive action against anyone, especially against MPs for contempt of Parliament. According to experts like Thomas Cooley (A Treatise on the Constitutional Limitations, 1972), controlling its own procedures is an inherent power, and the Parliament can punish anyone for contempt of Parliament even in absence of constitutional provisions. The unwillingness of the Privilege Committee and the Parliament to take punitive action has clearly created a culture of impunity, with the result that some MPs have actually come to believe that they are immune from punishment for engaging in illegal activities.

To conclude, it must be remembered that MPs belong to the "House of the People," which must be a sacred place. Thus, the standard for their behaviour must be higher than those of common citizens. For, the lack of trust in these elected representatives may shake people's confidence in Parliament, which is the nerve centre of democracy. Thus, we hope that our leaders would stop their blame game, and instead take action to clean up their own act. At the same time, we hope they will take initiative to frame an enabling legislation for enforcing parliamentary privileges. Can we count on our Hon'ble Speaker, the leader of the House and the leader of the opposition for their leadership in performing these tasks?

The writer is Secretary, SHUJAN Citizens for Good Governance.