Democracy DAIdeas Briefs Innovations in democracy, governance, and public sector management Issue No. 2 August 2007

Parliamentary Immunity and Democracy Development By Carmen Lane, DAI

DAI Washington Practically all democracies provide for some sort of immunity from 7600 Wisconsin Avenue Suite 200 prosecution for members of the . Bethesda, Maryland 20814 USA Russ Webster This is to allow legislators to express them- Public Integrity and the Rule of Law; and in [email protected] Tel: +1 301 771 7600 selves and adopt policies without fear of October 2006, the Global Organization of politically motivated retribution. However, Parliamentarians against Corruption called DAI Europe broad protection from prosecution can allow for countries to examine procedures for Strand Bridge House legislators to engage in illicit behavior with waiving parliamentary immunity.1 138/142 Strand London WC2R 1HH impunity. Overly politicized , on the other hand, can override the legitimate This brief highlights parliamentary immunity Bob Stephenson protection immunity is supposed to provide. issues pertinent to developing democracies, [email protected] The manner is which democratizing coun- using illustrations from the past decade, Tel: +44 (0) 20 7 420 8600 tries design and apply parliamentary immu- including research in Armenia, , and 2 www.dai.com nity, accordingly, has implications for the Guatemala. It argues that some form of par- integrity of the democratic process, touching liamentary immunity is necessary to protect on appropriate checks and balances, control free speech and prevent undue influence of corruption, and political legitimacy. It has by the executive branch. Moreover, legal become a focus of public debate, and often restrictions on the scope of immunity will discontent, from Armenia to Zambia. As have limited effect on abuses unless they recently as July 2007, President Yuschenko address larger issues related to the balance of Ukraine called on all political parties to of powers, legislative ethics, and corruption. renounce parliamentary immunity. It concludes with recommendations aimed at establishing balanced immunity guidelines Parliamentary immunity has also become within an institutional context of account- a focal point for international parliamentary ability. associations. In April 2006, the Inter-Parlia- mentary Union completed a study on par- liamentary immunity as part of the United What Is Parliamentary Immunity? Nations Development Programme Initia- Parliamentary immunity grants members tive on , Crisis Prevention, and of a legislature partial immunity from pros- Recovery; in July 2006, the Organization for ecution for civil or criminal offenses. Often, Security and Co-operation in Europe Par- this immunity is addressed in a country’s liamentary Assembly adopted a Resolution constitution and delineated in internal rules on Limiting Immunity for Parliamentarians of procedure. Its purpose is to reduce the in Order to Strengthen Good Governance, possibility of a member being pressured to

1 Research for the latter effort was sponsored by the U.S. Agency for International Development (USAID); http://www. gopacnetwork.org/Programming/programming_PI_en.htm.

2 Carmen Lane and Jeremy Kanthor of DAI researched parliamentary immunity systems for USAID in 2006 (paper cur- rently under peer review); related research was conducted by Charlie Wise and Trevor Brown of Indiana University (Ukraine), Jack Bournazian (Armenia), and Nerea Aparicio (Guatemala).

DAIdeas Democracy Briefs change his or her official behavior (voting, In Ukraine, government official Pavlo Laza- policy orientation, exposure of government renko, accused of corruption and money corruption) by threat of prosecution. Before laundering, won a seat in in 1998, prosecuting—or, in some cases, investi- reportedly to claim the shield of immunity. gating—a member, the immunity must be His supporters in parliament—backed by removed, usually by a vote of the legislature the executive—were able to vote down the itself. first attempt to remove his immunity. After his transgressions became more obvious to Parliamentary immunity traditionally takes the public and he lost the support of then- one of two forms. Countries such as the President Leonid Kuchma, a second attempt United States adopt a narrow scope, succeeded. He fled to the United States, restricting protection to actions and state- where he was prosecuted. While serving his ments undertaken in the legislator’s capacity eight-year sentence in the United States, as an elected representative. If a legislator Lazarenko ran for and won another seat in engages in illegal activity outside his or her the Ukranian Parliament in 2006. role as a member, he or she is subject to investigation, prosecution, trial, and punish- Peru, too, has seen allegedly corrupt gov- ment. Similarly, the British model—practiced ernment officials seeking to avoid pros- in such countries as Armenia, Bangladesh, ecution by getting elected to Congress. Liberia, Nepal, and Zimbabwe—protects leg- In 2005–2006, the Congress tried to end islators from civil actions (such as charges this unintended use of immunity by ruling of slander and libel) arising from their official that immunity does not cover members for duties. The “Continental” model, based on crimes committed prior to their election. The the French system, provides deputies with regulation remains contested in Congress, broad immunity, including protection from though, and subject to possible reversal. civil and criminal prosecution inside and outside their roles as parliamentarians. Most A powerful executive may violate the letter or developing democracies embrace a broad spirit of immunity to silence critics. In 2005, scope of immunity, presumably to protect the Cambodian National Assembly lifted the the legislative institution and its members parliamentary immunity of three opposition against the authoritarian abuses of the past. members accused of defaming the Chair- man of the National Assembly and Prime Whether generally narrow or broad, each Minister. While freedom of speech does not country’s system may have peculiarities extend to slanderous remarks in many con- related to how immunity is lifted, how inves- stitutions or immunity frameworks (including tigations may be conducted (and by whom), Ukraine, Yemen, Poland, Germany, Mali, and whether immunity may extend beyond a Mozambique, Uruguay, and Guatemala), member’s mandate in the legislature. local and international human rights groups believed the Cambodian charges were effec- tively reprisals by the ruling party. Bowing Typical Abuses of Parliamentary to international and public pressure, the Immunity Assembly reinstated immunity for the three Corrupt politicians may use a seat in parlia- members a year later, halting their prosecu- ment to cloak illicit activities. In Armenia, tion and allowing opposition leader Sam there is a strong public perception that Raimy to return from exile. many members join the National Assembly to protect their corrupt business interests, In Ukraine in 2001, then-President Kuchma a perception reinforced by the fact that directed the Procurator General (head of despite numerous accusations of corruption prosecution) to ask that Parliament lift the against members, government officials have immunity of Member of Parliament Yulia sought to lift immunity only twice since the Tymoshenko, a former government official democratic transition. The situation breeds and vocal reformer. Ms. Tymoshenko called cynicism: a 2003 poll by IREX/ProMedia the charges a political reprisal for her plan found that 64 percent of Armenians would to organize mass demonstrations demand- like to do away with parliamentary immunity. ing early presidential elections. At Kuchma’s

2 DAI Advancing Human Prosperity behest, the Procurator General arrested Politicized judicial systems can undercut Tymoshenko before receiving Parliament’s punishment of officials even when immunity consent to detain her (in apparent violation is lifted. In a notorious 2001 case known of the Constitution). Although this abuse of as “Guatagate,” Guatemala’s politicized immunity protection occurred in an era of Supreme did remove the immunity of more dictatorial than democratic tenden- then-President of Congress General Rios cies, the Procurator General’s office remains Montt and 22 ruling party members accused vulnerable to such political intimidation—an of secretly reducing taxes on alcoholic and issue taken up by the Council of Europe as other beverages in exchange for kickbacks. part of its reform effort in Ukraine. Intense pressure from the media and non- governmental and human rights organiza- Personalized politics often trump the tions succeeded in forcing the Supreme legal definition or scope of immunity. In Court to act against its political patrons but Armenia—which has a narrow immunity despite the lifting of immunity, these indi- system—legal arguments by the prosecuto- viduals were not convicted—thanks to what rial arm of the executive branch to waive many observers considered a compromised immunity of Assembly members tend not prosecutorial and court system. to focus on whether the alleged crimes fall within the scope of immunity but rather on the “seriousness” of the crime. For example, Recommendations four opposition deputies participating in a Immunity systems offer important protec- 1996 rally against the government had their tions for members of opposition parties in immunity challenged on the basis of the democratizing societies. The abuse of these gravity of the charge (treason), regardless of protections, however, threatens the integrity whether the activities fell within their role as of often nascent legislative institutions and deputies. In this case, votes to waive or sus- imperils democratization. While the instinct tain immunity fell almost completely along to end parliamentary immunity altogether party lines. Some progress seems to have is compelling, that option risks undermin- occurred since: in October 2006, wealthy ing a key role of the legislature: overseeing MP Hakob Hakobyan, under investigation the executive branch. This role is espe- for tax evasion, was charged with inciting cially relevant in political cultures where the a brawl that led to a gun battle. Despite his autocratic urge to silence dissent remains status as a member of the majority faction, strong. Accordingly, democracy reformers Hakobyan’s immunity was lifted in a vote should focus on strengthening parliamen- of 56 to 22 after extended debate but little tary immunity regulations with a holistic defense from his own party. According to view that combines public education, media sources, he subsequently cut a deal clearly defined parameters, and safeguards with the President’s office to avoid a prison to ensure a depoliticized process for lifting sentence.3 He was, nevertheless, re-elected immunity and pursuing prosecution: to parliament in 2007. ● In countries with pervasive corruption In Guatemala, Colombia, and Burundi, the and weak checks and balances between Supreme Court rather than the legislature branches of government, parliaments must lift a legislator’s immunity. This con- must do more to control members’ stitutional strategy to depoliticize immunity behavior so as to build public confi- may avoid the pitfalls of legislative “self- dence in the legislature. For example, policing,” but it does not guarantee an legislative reforms should promote apolitical review of immunity. In Guatemala, parliamentary codes of conduct—pub- for example, Congress is highly influential in licized inside and outside of parlia- selecting Supreme Court magistrates, many ments—to establish minimum standards of whom feel indebted to a particular party of behavior for members. Similarly, leg- or politician—and have voted accordingly on islatures should mandate disclosure of several cases of immunity. assets and income to narrow the scope for abusing immunity.

3 Radio Free Europe/Radio Liberty (www.armenialiberty.org)

DAIdeas Democracy Briefs 3 Carmen Lane manages legislative strengthening projects and supports other DAI activities in Africa. Recently elected to the firm’s Board of Directors, she came to DAI from the United Nations Develop- ment Programme, where she managed the Democratic Governance Trust Fund. Previously, she worked at the National Democratic Institute for International Affairs on programs in Southern Africa, focusing on voter and civic education, nongovernmental organization capacity building, legislative strengthening, and decentralization. She holds an M.A. in International Relations from American University.

● Parliamentary leaders should develop on how to insulate legal decisions from procedures for ethics investigations to political influences, and training mem- ensure these are depoliticized (such as bers of parliament on how to enforce through internal ethics committees or oversight of prosecutorial offices and external ombudsmen) and that sanctions . are enforced. The role of immunity in a democracy is not ● Regional parliamentary organizations to protect an individual legislator but to already promote model codes of conduct protect the legislative institution, on behalf for government and parliamentary lead- of the people. Ultimately, for parliamentary ers. Moreover, political party institutes immunity to be effective, key stakeholders— and international parliamentary networks including the legislature, the public, and the have begun to lay out recommenda- government—must accept and internalize tions for minimum immunity standards. the true purpose of parliamentary immu- These efforts should be expanded and nity. A key role of the legislature is to serve formalized to provide parliamentarians, as a check on the executive—often a new civil society, and media with guidelines phenomenon in emerging democracies. This to identify abuses of immunity. Donors role requires adequate space for legislators could provide additional resources to to speak freely and to criticize policies and identify the need for stronger institu- practices they deem counter to the public tional checks and balances between interest. This freedom, not cover for criminal the executive and legislature and to put activity, is the rationale for parliamentary immunity standards in context. immunity, and should be the focus of parlia- mentary immunity reforms. ● Political parties should publicize criteria for candidate selection and promote rule changes that allow for open party electoral lists (so voters know the The DAIdeas Democracy Briefs present individuals as well as the parties they are succinct, practical insights from the world of democratic governance. Our goal is to voting for, including their record of integ- share firsthand observations and analy- rity). This measure may make it more sis—in a readable format free of academic difficult for corrupt candidates seeking jargon—with immediate application to our immunity to run for or win a seat. common mission: strengthening democracy, governance, and public sector management ● Media play an indispensable role in around the world. We welcome your feed- drawing attention to politically motivated back and suggestions. investigations or to parliamentarians benefiting from the impunity provided by Series Technical Editor, Joseph Siegle their positions. Media-strengthening [email protected] initiatives should train journalists on parliamentary immunity, the rules and institutions involved, and how to pursue Building on 37 years of experience at the forefront of international development, DAI investigative journalism so they can bring is currently implementing 117 projects corruption to light. worldwide, including 19 major initiatives in its • Rule-of-law reforms should include politi- Democratic Governance and Public Sector cal immunity considerations, especially Management portfolio. DAI was named U.S. defining the roles and responsibilities Government Contractor of the Year in 2006. of , advising governments

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