Bribery and MPs
A G Noorani
Most countries treat corruption and bribery by MPs as a criminal offence triable by courts of law rather than a breach of privilege. More, within Parliament they have set up institutions run by outsiders to keep a watch on MPs’ ethics
Quaid-e-Azam’s unbroken record in India’s Central legislature from 1910 to 1947 has been ignored by Indians and Pakistanis. He was an excellent MP concerning himself even with Bills such as the Steel Industry (Protection) Bill and the Indian Factories (Amendment) Bill, when he spoke on “prevention of excessive temperatures within a factory”. He was, besides, active on the Committees.
One such body bears recalling today, the Reforms Enquiry Committee (1924), popularly known as the Muddiman Committee, after its Chairman, Sir Alexander Muddiman, the Home Member of the Viceroy’s Executive Council.
Predictably, Jinnah joined in a vigorous dissent on the Reforms along with Tej Bahadur Sapru, R P Paranjpye and P S Sivaswamy Aiyar. But on one point the Committee was unanimous, and it is relevant even now 84 years later. “We are given to understand that there are at present no means of dealing with the corrupt influencing of votes within the legislature. We are unanimously of opinion that the influencing of the votes of members by bribery, intimidation and the like should be legalised against. Hence, again, we do not recommend that the matter should be dealt with as a breach of privilege. We advocate that these offences should be made penal under the ordinary law.”
That has not been done. No lota in Pakistan or “aaya Ram, gaya Ram” in India has been fined or imprisoned ever. On April 17, 1998, the Supreme Court of India held, by a majority of 3-2, that a Member of Parliament or State legislature who took bribes enjoys constitutional protection. The bribe giver can be prosecuted but not the bribe taker. A voter who accepts a bribe for his vote or offers a bribe to another can be punished. So can ministers and civil servants. But not the legislator.
This was based on a wrong interpretation of Article 105 (2) of the Constitution which declares: “No member of Parliament shall be liable to any proceedings in any Court in respect of anything said or any vote given by him in Parliament or any Committee thereof...”
Article 66 (1) of the Constitution of Pakistan is identically worded. It is hard to accept that accepting bribes is an exercise of freedom to speak or vote as a legislator. But this was based on British law.
In Britain, MPs who were alleged to have taken bribes were arraigned before the Committee of Privileges and eventually expelled from Parliament. Acceptance of bribes was regarded as a breach of privilege in British law, not a criminal offence. However, in Britain the law and practice have moved ahead. We persist in the old practice. Most countries treat corruption and bribery by MPs as a criminal offence triable by courts of law rather than a breach of privilege. More, within Parliament they have set up institutions run by outsiders to keep a watch on MPs’ ethics.
The sinners of today might perhaps “take heart” from the fact that bribery of legislators was not absent before independence. On August 16, 1924, the Private Secretary to the Viceroy, G F de Montmorency wrote to the Home Member, Sir James Crerar, about queries sent by the Governor of Bengal Lord Lytton regarding “(1) offers to pay sums to members of Council to abstain from voting in the division on ministers’ salaries; (2) actual payments made to members of the legislative council to vote with the Swaraj Party; (3) offers to members of the legislative council of salaries posts in the corporation on the condition of abstention from voting with the government; (4) monthly payments to nominated members, of the legislative council to absent themselves during process of sessions when important debates were to take place”.
The Viceroy replied that it was not an offence in law. A Bill was drafted, the Legislative Bodies Corrupt Practice Bill, which sought to penalise the offer to and receipt or demand of a bribe by a legislator in connection with his functions as such. Introduced in the Central Legislative Assembly on August 25, 1925, it fell by the wayside before long. Why not revise it?
In 1995, Britain established a Parliamentary Commissioner for Standards. He reports to the Committee on Standards and Privileges. The House of Commons acts on its report. In 1992, Justice Buckley rejected the old view that criminal law does not apply. In the US, Chief Justice Warren Burger of the Supreme Court said “taking a bribe is obviously no part of the legislative process or function; it is not a legislative act. It is not, by any conceivable interpretation, an act performed as a part of or even incidental to the role of a legislator”. The shield against prosecution is intended to preserve the integrity of the legislative process, not to enable its subversion.
Last March, in the wake of a string of cases of misconduct and corruption, the US House of Representatives created an independent Office of Congressional Ethics, comprising six members, to restore credibility to an internal policing process that had been seen as largely ineffective in recent years, even though some legislators were indicted, rebuked or jailed for various offences.
“The public does not trust us on ethics issues at this point,” said Representative Michael Capuano, the Massachusetts Democrat who led the Task Force that recommended the new office. “They think we are all there protecting each other.”
An investigation can begin only when one panel member appointed by the Speaker and another by the minority leader agree. All six members must also be appointed jointly by the Speaker of the House and the leader of the minority party. The House takes the final decision.
The fundamental principle is common to both the UK and the US — legislators need a monitor on their conduct from outside their own ranks.
A G Noorani is a prominent lawyer and a commentator on regional affairs