Court of Appeal and Latimer House Principles

December 22, 2012, 7:40 pm 

As the week came to a close, a fresh controversy was generated with the Court of Appeal issuing summons on the Speaker of Parliament and the Parliamentary Select Committee appointed to inquire into the impeachment motion against the chief justice. The Court of Appeal was relying on an interpretation of Article 138(1) of the constitution which gives it the power to "correct all errors in fact or law which may be committed by any court of first instance, tribunal or any other institution". Why the CoA thinks it has the jurisdiction to correct perceived ‘errors in fact and law’ made even by parliament is because of the phrase ‘any other institution’ which also appears in Article 140, which the CoA has emphasised in bold letters in its determination. Even a cursory reading of articles 138 and 140 will show that the term "any court of first instance, tribunal or any other institutions" refers to judicial bodies below the Court of Appeal (written from the high to the low).

 The term "any other institution" in articles 138 and 140 obviously refers to minor judicial bodies ranking below even the tribunals. If the term "any other institution" is so broad that it includes the parliament, then it has to inevitably include the Supreme Court as well.  Does that mean that the Court of Appeal has the power to ‘correct all errors of fact or law’ that may be committed by the Supreme Court? This kind of determination will of course be summarily brushed off by parliament. Constantly having their decisions publicly ignored will do no good to the judiciary in this country. The Parliament Powers and Privileges Act of 1953  is very clear on the powers of parliament. Section 7 of the Act states that the immunities and powers of members of parliament will be those conferred by this act and those exercised by the UK House of Commons. The Joint Committee on Parliamentary Privilege of the British Parliament of 1999 had the following to say:

 Section 229 – "What happens within Parliament is a matter for control by Parliament alone. Such matters will not be reviewed by the courts.  So far as the courts are concerned, they will not allow any challenge to be made to what is said or done within the walls of Parliament in performance of its legislative functions and protection of its established privileges".

Section 232 – "Both Houses have long claimed, and succeeded in maintaining, the right to be the sole judges of the lawfulness of their own proceedings and to determine, or depart from, their own codes of procedure. Courts of law accept Parliament’s claim that they have no right to inquire into the propriety of orders or resolutions of either House relating to their internal procedure or management. Except for purposes of statutory interpretation, the courts do not `look behind the Act’ or consider themselves competent to consider the processes within Parliament preparatory to enactment. In the processes of Parliament there will be much consideration whether a bill should or should not in one form or another become an enactment. When an enactment is passed there is finality, unless and until it is amended or repealed by Parliament".

In the landmark Privy Council case of Madzimbamuto v Lardner Burke (1969) Lord James Reid said the following about the powers of the courts vis-a-vis the parliament: "It is often said that it would be unconstitutional for the United Kingdom Parliament to do certain things, meaning that the moral, political and other reasons against doing them are so strong that most people would regard it as highly improper if Parliament did these things. But that does not mean that it is beyond the power of Parliament to do such things. If Parliament chose to do any of them the Courts could not hold the Act of Parliament invalid".

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