Parliamentary Privilege, the Rule of Law and the Charter after the Vaid Case

Abstract

Parliamentary privilege immunises certain activities of legislative bodies and their members from the ordinary law and judicial scrutiny. It seems to place these activities beyond both the ideals and the institutional framework of the rule of law, with potentially serious consequences such as a victim of discrimination having no recourse if the discrimination arose from an action covered by privilege. This paper looks at a recent case and argues that the rule of law and parliamentary privilege, properly understood, support rather than oppose one another. Specifically, legislative actors are entitled to interpret constitutional norms, at the moment they seek to assert privilege. It argues that judges are not the exclusive guardians of the rule of law, and that legislative offices such as the Speaker of the House have a legitimate role to play in upholding it. The author concludes that there is however a need for a rationale that confirms the legitimacy of the House's authority to settle disputes between its members within the realm of privilege, while leaving the Court with a principled basis to intervene when the facts so warrant.

Keywords: parliamentary privilege, rule of law