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 or her 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 part of the privileges afforded the Houses of Parliament under the Common Law (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.
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.
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. Members of parliament can be arrested only for crimes if caught at the time of the criminal act in flagrante for a crime with no possibility of bail. These arrests can be overruled by a floor vote of the particular parliament chamber that parliamentarian belongs to.
Criminal proceedings may be suspended for crimes committed only after a parliamentarian begins his term of office, and requests for suspensions need to be approved by majority of members of Parliament. Members of the National Congress as well as other high level politicians are prosecuted and judged exclusively by the Supreme Court, as opposed to the lower courts.
As of 2007, no Brazilian politician has ever been convicted by the Supreme Federal Tribunal of any crime since parliamentary immunity was instituted in 1988.
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.
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. Both irresponsibility and inviolability are mandated by article 26 of the Constitution of France.
These dispositions are somewhat controversial, following abuse of such privileges.
Members of the Parliament may not be sought, prosecuted, judged or imprisoned for actions that they have accomplished within their duties as parliamentarians. In particular, parliamentarians are immune from prosecution for defamation committed in the exercise of their functions. 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.
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. 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.
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.
Article 46 of Germany's Constitution states: "At no time may a Member be subjected to court proceedings or disciplinary action or otherwise called to account outside the Bundestag for a vote cast or for any speech or debate in the Bundestag or in any of its committees," with exceptions made for "defamatory insults." The Bundestag can vote to lift immunity for specific members, and to allow prosecution in cases relating to alleged criminal activity. The Bundestag may also order that a detainment or prosecution of a member be suspended.
Parliamentary immunity in Italy was re-instated in 1948 by the Constituent Assembly, to prevent cases such as "Francesco Saverio Nitti, whose house was searched and ransacked by the fascist police in the fall of 1923; Giacomo Matteotti, murdered by fascists June 10, 1924 for his work as a deputy of opposition; Giovanni Amendola, beaten in Montecatini in 1925 and died in Cannes in April 1926; Antonio Gramsci, whose parliamentary mandate was revoked on Nov. 9, 1926 and who was tried in 1928 by a special court for his activities as a Member of Parliament and as a political opponent. The same court had him imprisoned and his correspondence was seized".
Immunity was limited in 1993, but abuse continues by means of denying authorizations to certain judiciary acts; therefore, in the final judgment, the Constitutional Court often overturns the decisions of Parliament to protect its members, authotising the activities of the judiciary.
In Spain, parliamentarians in the national Congress of Deputies and Senators as well as legislators serving in regional administrations and certain members of the Spanish Royal Family are afforded 'Aforos', thus becoming 'aforados' (lit. afforded ones) and enjoy privileges granted in the Constitution of Spain. These Self-regulatory organizations membership privileges are reflected in the following parliamentary prerogatives:
- Inviolability: Legislators can not be judicially prosecuted for opinions expressed or votes cast in the exercise of their official duties (Article 71.1 of the Spanish Constitution of 1978).
- Immunity: Legislators may only be detained in flagrante delicto, and so plaintiffs and prosecutors must seek authorisation from the assembly in which the accused is elected before any legal process is initiated (Article 71.2 of the Spanish Constitution of 1978). although the final authority rests with the Supreme Court of Spain
- Specific Jurisdiction: Parliamentarians can only be judged in the first instance by the Supreme Court, which practice has been criticised as potentially undermining any right of appeal to a higher court.
Currently there are 10,000 persons in Spain with parliamentary immunity, being only a fifth of them politicians.
Between 26 October 1961 and 12 March 1998 Turkish prosecutors made 2,713 requests to suspend the immunity of 1,151 deputies. Only 29 requests were granted. Six of these were the deputies of the Democracy Party arrested in 1994 for promotion of Kurdish nationalism.
In connection with the Ergenekon trials (from 2008), some accused have been selected as parliamentary candidates specifically to give them legal protection via parliamentary immunity.
In 20 May 2016, an amendment to the Constitution has been passed by the Parliament, removing parliamentary immunity. Due to surpassing the two-thirds majority threshold by 374 votes for and 138 against, the amendment was able to pass without a constitutional referendum.
Article 80 of the Ukrainian Constitution states that parliamentary immunity is guaranteed to the peoples' deputies of Ukraine. The peoples' deputies of Ukraine do not have legal responsibility for their votes and opinions in parliament and its appendent bodies, except for responsibility for insult or defamation. The peoples' deputies of Ukraine cannot be held criminally liable, detained or arrested without the agreement of the Verkhovna Rada.
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."
Members of the United States Congress enjoy a similar parliamentary privilege as members of the British Parliament; that is, they cannot be prosecuted for anything they say on the floor of the House or Senate. They also enjoy the right to be present in Congress: that is, they may be in prison or jail the rest of the time, but they have the right to attend Congressional sessions, speak on the floor, vote, etc. These rights are specified in the Constitution and have been fairly uncontroversial in U.S. history. Courts have consistently interpreted them very narrowly.
- Dicey, A.V. (1885) An Introduction to the Study of the Law of the Constitution, Part II Chapter IV
- Secco, Alexandre. Im(p)unidade. Veja. July 12, 2000. Retrieved on October 14, 2007.
- Rodrigues, Décio Luiz José. Imunidade Parlamentar: A Impunidade Continua? Ordem dos Advogados do Brasil. August 18, 2006. Retrieved on October 14, 2007.
- Ferreira, Olavo Augusto Vianna Alves. A IMUNIDADE PARLAMENTAR NA EMENDA CONSTITUCIONAL Nº 35, DE 20 DE DEZEMBRO DE 2001. Revista Diálogo Jurídico. Salvador, Brazil. nº. 14. 2002. Retrieved October 14, 2007.
- Brazilian Magistrates Association. "Nenhuma condenação desde 1988" (Retrieved August 21, 2007)
- Q&A: Brazil corruption scandal. BBC News. September 4, 2007. Retrieved on October 14, 2007.
- German Basic Law, Article 46. https://www.btg-bestellservice.de/pdf/80201000.pdf Retrieved December 12, 2015
- XVI legislatura, Camera dei deputati, Doc. IV, n. 11-A-bis, p. 4.
- (Italian) Giampiero Buonomo, I nuovi senatori e la guarentigia dell'inviolabilità in Rivista di diritto penale e processo, n. 10/2016.
- See Giampiero Buonomo, Lo scudo di cartone, Rubbettino, 2015, ISBN 978-8849844405.
- Turkish Daily News, 30 April 1998, Parliament reluctant to expose members to prosecution
- National Conference of State Legislatures (2000). Mason's Manual of Legislative Procedure, 2000 ed., p. 411–412
- J.P.Joseph Maingot with David Dehler, Politicians Above the Law: A case for the abolition of parliamentary inviolability (Baico Publishing 2011) (ISBN 978-1-926596-84-6)
- 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?, '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, Rules on Parliamentary Immunity in the European Parliament and the Member States of the European Union, (Brussels: European Parliament, ECPRD, 2001).
- UK Parliament, 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: Inter-Parliamentary Union, 2001) (ISBN 92-9142-056-5)
- L'immunité parlementaire, French National Assembly