Immunity – protection against persecution or shield against justice

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Parliamentary immunities and privileges have appeared in the practice of legislatives for many years, their legitimate purpose being to protect MPs from political persecution and facilitate freedom of expression and independence. They avoid the somehow natural tendency of governing factions to “defeat” opposition’s arguments through any means necessary, including politically-motivated arrests or criminal charges. Consequently, immunity is one of the facilitators of pluralism in democratic societies. But where such protection measures exist, there is need for responsibility. 

Enjoying immunity and privileges requires MPs to present a high degree of integrity and consistent moral values so that they don’t fall prey to abuse. Mismanaging immunities creates discrimination between MPs and ordinary citizens when facing justice and affects the House’s public image overall. The recent case of Turkey, where several ministers and top officials hid behind their immunity in order to escape corruption charges is emblematic for the way in which privileges can be used against their initial purposes.

An analysis of parliamentary immunity and its components is, therefore, needed so that we can better understand what kind of activities fall in the object of privileges and how parliaments should act when confronted with delicate situations regarding this matter.

First of all, it should be noted that parliamentary immunity is guaranteed by the Constitution, with only a few exceptions worldwide (these exceptions have their origin in the British system, where the Constitution is not written). This makes changes to parliamentary privileges subject to sometimes difficult and lengthy constitution-amending processes.

Secondly, immunity works and is instated in the interest of the institution as a whole, to avoid pressure from other branches of the government or individuals. Immunity does not work in the interest of the individual person, thus making it a notion of ordre publique. That’s why MPs cannot renounce their immunity during their mandate.

The two components of the modern immunity legal institution are: non-liability and inviolability. Non-liability refers to protection awarded to MPs from civil and criminal prosecution for votes and opinion express while holding this political position. Practice on the application of non-liability differs from state to state: in some countries, protection is limited only to opinions expressed on the floor of the House or during debates, while in others it extends even to work-related declarations expressed in public debates or political declarations outside parliament.

The second component is inviolability. This refers to the non-interference component in parliamentary immunity, prohibiting the judiciary from arresting or even prosecuting MPs for acts carried out in the exercise of their parliamentary functions. Inviolability has been gradually reduced over time, in some parliaments even being limited to periods when the house is in session. Some countries have excluded inviolability for some more serious crimes, while others use an automatic waiving procedure in case of flagrante delicto. In any case, inviolability can always be waived by vote of the house/committee, in most countries.

The biggest danger related to immunity is that it does not become an instrument impeding democratic development. There have been numerous cases of MPs hiding behind their parliamentary immunity in order to escape prosecution for certain crimes, both in developing and developed nations. Sometimes (take Armenia, for example), even a rather narrow protection for legislators is interpreted in a broad manner in order to shield MPs as much as possible from criminal proceedings.

Examples of mismanagement of immunity include prominent business men becoming members of parliament just to benefit from protection against economic crimes prosecution, pressuring and threatening opposition with the lifting of immunity and bringing trumped-up charges against them, creating complicated procedural processes for immunity-lifting.

A few lessons learned from legal practice with immunities worldwide:

1. a country’s political life should always be taken into consideration when designing the constitutional provisions regarding immunity;

2. media and civil society should always be involved in high-profiled immunity cases, putting pressure on state institution not to abuse these provisions;

3. rule of law and abuse of immunity are strongly connected – when the first is strong, the second is less frequent; and vice versa.

The higher demand from the public for MPs to respect ethics (and legal) rules sometimes comes in conflict with the inviolability of the representatives, especially in parliamentary systems where people’s trust in political and state institutions is low. To address this issue, parliaments in certain Western democracies have instituted so-called Ethics Committees and created Ethics codes that provide clear rules on no-go situations for MPs.

Moreover, a transparent selection process of candidates for parliament and a healthy political system can contribute a lot to bringing people with integrity and respect for the laws in the legislative and keeping the most corrupt out.

To find out more about parliamentary immunities and how they work, please click here.

This is a blog post by Cosmin Octavian of the United Nations Development Programme