Parliamentary immunity

Parliamentary immunity, also known as legislative immunity, is a system in which members of the parliament or legislature are granted partial immunity from prosecution. Before prosecuting, it is necessary that the immunity be removed, usually by a superior court of justice or by the parliament itself. This reduces the possibility of pressing a member of the parliament to change his vote by fear of prosecution.

Westminster system countries

Legislators in countries using the Westminster system, such as the United Kingdom, are protected from civil action for slander and libel by parliamentary immunity whilst they are in the House. This protection is known as "parliamentary privilege". Parliamentary immunity from criminal prosecution is not enjoyed by Members of Parliament under the Westminster system. This lack of criminal immunity is derived from the key tenet of the British Constitution that all are equal before the law. [ Dicey, A.V. (1885) "An Introduction to the Study of the Law of the Constitution", Part II Chapter IV]

In the run-up to the 2006 election in Canada, Conservative Party leader Stephen Harper denounced the ruling Liberal Party on the floor of the House of Commons, contending that the government ran "a massive corruption ring using organized crime to defraud taxpayers." Although the Liberal Party had threatened to sue Harper if he repeats his allegation during the campaign, parliamentary immunity prevented them from legal action against his statements in the Commons.

France

Members of the Parliament of France enjoy "irresponsibility" for what they did as parliamentarians, and partial "inviolability" – that is, severe restrictions for the police or justice to arrest or detain them. These dispositions are somewhat controversial, following abuse of such privileges.

Irresponsibility

Members of the Parliament may not be sought, prosecuted, judged or imprisoned for actions that they have accomplished within their duties of parliamentarians. In particular, parliamentarians are immune to prosecution for defamation for such actions. This includes speeches and votes in public sittings of the assemblies, law proposals, amendments, as well as reports and other actions commissioned by parliamentary instances. This, according to the jurisprudence, does not include interviews on broadcast radio, nor does it include reports commissioned by the executive branch – since such actions are not specific to the duties of a parliamentarian.

For interventions in public sitting, members of parliament are however still subject to the disciplinary rules of their assembly.

There is no way to lift this irresponsibility clause, and the parliamentarian himself or herself cannot renounce it. The termination of the parliamentary term does not allow the prosecution of former parliamentarians for actions committed within their parliamentarian duties.

Inviolability

While members of parliament are not criminally responsible for their actions as parliamentarians, they are, however, responsible for their actions as private citizens. There are, however, strong limitations as to their prosecution.

Members of parliament may be arrested or otherwise deprived of their freedom, or face restrictions thereof, only with the permission of the desk of their assembly. This authorization is not needed in case of a "flagrant" felony (e.g. the parliamentarian was caught red-handed) or in case of a definitive condemnation by a court of law (Constitution of France, art. 26). The assembly of which the parliamentarian is a member may oppose any such measure for the duration of the parliamentary session.

Requests for the arrest or detention of a parliamentarian are issued by the general prosecutor of the competent Court of Appeal, sent to the Minister of Justice, who transmits them to the Desk of the relevant assembly. The Desk examines the requests and rules on it; its ruling is published in the "Journal Officiel".

Controversy

The topic of parliamentarian immunity is somewhat controversial in France, especially in the context of scandals of corruption or graft involving politicians. Many resent such a mechanism, in which some influential members of society enjoy special rights and are not made accountable for their own actions.

In 2004, Charles Pasqua was voted in as a senator by conservative electors of the Paris region (the Senate is elected by an electoral college). This was denounced by critics, including the "Canard Enchaîné", as a way to prevent Pasqua from being prosecuted for various alleged crimes of corruption and misuse of public funds. "See corruption scandals in the Paris region."

Likewise, in early 2005, the idea was suggested that former Presidents of France should become senators-for-life, instead of being able to sit in the Constitutional Council. Ostensibly, this idea was a means to solve the problem of such former presidents as Valéry Giscard d'Estaing, who may not have kept to the strict duty of political neutrality in their speech expected from members of the Council. This, however, was criticized as a way to provide Jacques Chirac with immunity for related scandals.

Brazil

The 1988 Brazilian constitution grants parliamentary immunity to members of both the Chamber of Deputies and the senate. Unlike other countries, Brazilian parliamentary immunity is also extended to crimes committed outside a parliamentarian's official duties (murder, theft, etc.). This does not apply for crimes committed before the member of parliament takes office. Parliamentarians can only be arrested for these crimes if caught at the time of the criminal act (Portuguese: "flagrante delito".) for a crime which has no possibility of bail. These arrests can be overruled by a floor vote of the particular parliament chamber that parliamentarian belongs to (IE: Senate).Secco, Alexandre. [http://veja.abril.com.br/120700/p_044.html Im(p)unidade] . Veja. July 12, 2000. Retrieved on October 14, 2007.] Rodrigues, Décio Luiz José. [http://www2.oabsp.org.br/asp/esa/comunicacao/esa1.2.3.1.asp?id_noticias=104 Imunidade Parlamentar: A Impunidade Continua?] Ordem dos Advogados do Brasil. August 18, 2006. Retrieved on October 14, 2007.]

Criminal proceedings for a crime are only suspended for crimes committed after a parliamentarian begins his term of office, and these suspensions can be overruled by a floor vote of the particular parliament chamber that parliamentarian belongs to. Once criminal proceedings are allowed by such a vote, the parliamentarian is given a "privileged forum" (Portuguese: "foro privilegiado".), which allows him to be tried by the Supreme Federal Tribunal, as opposed to the lower courts. [Ferreira, Olavo Augusto Vianna Alves. [http://www.direitopublico.com.br/pdf_14/DIALOGO-JURIDICO-14-JUNHO-AGOSTO-2002-0LAVO-AUGUSTO-VIANNA.pdf A IMUNIDADE PARLAMENTAR NA EMENDA CONSTITUCIONALNº 35, DE 20 DE DEZEMBRO DE 2001] . Revista DiálogoJurídico. Salvador, Brazil. nº. 14. 2002. Retrieved October 14, 2007.]

In practice, no Brazilian politician has ever been convicted by the Supreme Federal Tribunal of any crime since parliamentary immunity was instituted in the 1988 constitution. [ Brazilian Magistrates Association. [http://www.amb.com.br/portal/index.asp?secao=mostranoticia&mat_id=9122 "Nenhuma condenação desde 1988"] (Retrieved August 21, 2007)]

After the Mensalão scandal in 2005, the Supreme Federal Tribunal surprised many when, on August 24, 2007, it accepted the indictments of 40 individuals, most which are former or current federal deputies, all of which were allies of Brazilian president Luiz Inácio Lula da Silva. [ [http://news.bbc.co.uk/2/hi/americas/4676435.stm Q&A: Brazil corruption scandal] . BBC News. September 4, 2007. Retrieved on October 14, 2007.]

United States

Mason's Manual notes, "The courts, by a series of decisions, have explained away almost every essential feature of the privilege from arrest as it once existed...A member of the legislature has no right to physically resist an officer attempting to make an arrest to the extent of assaulting such officer." [cite parl|title=MAS|pages=411-412|edition=2000|year=2000]

References

External links

*Josh Chafetz, "Democracy's Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions" (Yale Univ. Press 2006) (ISBN 0-300-11325-0)
*Simon Wigley, 'Parliamentary Immunity: Protecting Democracy or Protecting Corruption?, ' [http://www.blackwellpublishing.com/journal.asp?ref=0963-8016&site=1"Journal of Political Philosophy"] ,Vol. 11, No.2, pp. 23-40.
* Erskine May, "Parliamentary Practice: The Law, Privileges, Proceedings and Usage of Parliament", W.R. Mackay "et al." (eds) (London: Butterworths, 2004) (ISBN 0-406-97094-7)
* Simon McGee, [http://www.ecprd.org/Doc/publica/OTH/RulesParllmmu.pdf#search=%22Rules%20on%20Parliamentary%20Immunity%20in%20the%20European%20Parliament%20%22"Rules on Parliamentary Immunity in the European Parliament and the Member States of the European Union"] , (Brussels: European Parliament, ECPRD, 2001).
* UK Parliament, [http://www.publications.parliament.uk/pa/jt/jtpriv.htm"Reports of the Joint Committee on Parliamentary Privilege in Session"] HL 43-I/ HC 214-I. (London: The Stationery Office Limited, 1999).
* Marc Van der Hulst, "The Parliamentary Mandate". (Geneva: [http://www.ipu.org/english/home.htm Inter-Parliamentary Union] , 2001) (ISBN 92-9142-056-5)