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Immunity Provisions for Ministers and Members of Parliament

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Immunity Provisions for Ministers and Members of Parliament IMMUNITY PROVISIONS FOR MINISTERS AND MEMBERS OF PARLIAMENT QUERY SUMMARY Please provide an overview of the domestic immunity Immunities, or jurisdictional privileges, provide regimes for ministers and members of parliament in persons or groups of persons some degree of different countries. protection against civil or criminal rules that do not apply to all citizens. These provisions are in place to CONTENT ensure the unimpeded performance of public functions and to avoid targeted prosecutions or political 1. Rationale for immunity provisions and their persecution. However, immunities can also be abused corruption risks by officials who use it as a shield from liability for 2. International standards, recommendations and criminal offences, including corruption. Good immunity best practices regimes manage to balance the independence 3. Country examples required for public officials to fulfil their mandate with 4. Enabling factors needed for immunity regimes as the right accountability mechanisms to ensure that an anti-corruption instrument corruption is effectively sanctioned and prevented. 5. References While most countries provide immunity protections for their public officials, each jurisdiction varies in the \\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\\ range of officials covered, scope of immunity and rules regulating the procedures for lifting immunities. Author(s) Jon Vrushi, Transparency International, International norms and standards have emerged in [email protected] the last two decades with the aim of sharing best practices and closing loopholes that may encourage Reviewer(s) corrupt behaviour. Most notably, Article 30 of the Marie Chene, Transparency International, United Nations Convention against Corruption [email protected] provides a legal framework for the reduction of immunity protections. The effectiveness of amending the regime of Date: 9 April 2018 immunities as an anti-corruption instrument depends on the institutional settings, observance of the rule of law as well as the domestic political economy. © 2018 Transparency International. All rights reserved. This document should not be considered as representative of the Commission or Transparency International’s official position. Neither the European Commission,Transparency International nor any person acting on behalf of the Commission is responsible for the use which might be made of the following information. This Anti-Corruption Helpdesk is operated by Transparency International and funded by the European Union. IMMUNITY PROVISIONS FOR MINISTERS AND MEMBERS OF PARLIAMENT 1 RATIONALE FOR IMMUNITY While recognising the merits of providing public officials PROVISIONS AND THEIR with some degree of legal protection, it is crucial to CORRUPTION RISKS identify potential integrity gaps and corruption risks that stem from these very rules. Ultimately, there is a trade- Overview off between providing public officials with independence from external pressure when acting in good faith and Immunities or jurisdictional privileges provide persons ensuring that they remain accountable for their actions, or groups of persons some degree of protection particularly if they abuse their public function. This against civil or criminal rules that do not apply to all trade-off means that every jurisdiction should aim to citizens (UNODC 2009; Venice Commission 2014). In strike the right balance between ensuring criminal law, immunities are considered exceptions to independence and accountability for public officials. the compulsoriness of criminal law, whose final effect The right balance depends on contextual factors, such is to exclude coercive state power (Iovene 2017). as the risks that public officials face in terms of legal harassment and political pressure, integrity of the Immunity provisions help ensure a better separation of judiciary, observance of the rule of law as well as the judiciary, executive and legislative powers. They integrity norms and mechanisms in the state apparatus are in place to ensure the unimpeded performance of and society as a whole. public functions and to avoid targeted judicial proceedings or political persecution. Types of immunity provisions The first registered cases of legal protection for public The types and scope of immunity provisions vary functions date as far back as the Roman republic across countries and jurisdictions. where it was punishable by death to attack citizens participating in tribunes of the people or to hinder their Absolute immunity versus functional immunity functions (Venice Commission 2014). By the late 17th century, Britain had become the first country in the One crucial distinction can be drawn between world to codify legal protection for its MPs (Joint jurisdictions that provide immunity for public officials Committee on Parliamentary Privilege 2013). By the only for acts committed in the course of the end of the 18th century, the American and French performance of their function (functional immunity), revolutions had produced new governing modalities and jurisdictions which extend immunity for any acts which provided the representatives of the people with committed by public officials, whether they are directly some degree of protection from the other branches of related to their official function or not (absolute government. immunity) (UNODC 2017). The United Nations Office on Drugs and Crime (UNODC) highlights absolute Today, most countries provide some degree of legal immunity as the type most likely to be invoked in the protection for public officials. The Organisation for context of criminal proceedings for corruption offences Security and Cooperation in Europe (OSCE), in its (UNODC 2017). recent Handbook on Fighting Corruption, lists the following legitimate purposes for immunity provisions ‘Narrow’ versus ‘wide’ immunity (OSCE 2016, p.194): Among countries that provide their officials with • to ensure that the elected representatives of the functional immunity, two further categories can be people can speak in the legislature without fear of observed: non-liability and inviolability. Non-liability is criminal or civil sanctions (including claims of a type of functional immunity which provides legal defamation) protection for opinions and votes cast in parliament. Non-liability applies almost exclusively to MPs and • to protect elected representatives from being arbitrarily detained and prevented from attending does not cover other categories of public officials. It is the legislature otherwise known as narrow immunity. • to act as a shield against malicious and politically The other type of functional immunity, known as motivated prosecution inviolability, extends legal protection to public officials 2 IMMUNITY PROVISIONS FOR MINISTERS AND MEMBERS OF PARLIAMENT not only for opinions and votes cast, but also for any Corruption risks – impunity acts they perform in their function. As a wider provision, inviolability can be extended not just to MPs While immunity provisions help ensure the separation but also to heads of state, ministers and other public of powers and a functioning democracy, they can pose officials. serious corruption risks. The independence required to ensure the separation of powers can come at the Differences in immunity provisions for cost of reduced accountability for public officials. The MPs and ministers obvious link between immunity and corruption stems from a shift in the cost-benefit analysis that a public Historically, immunity protections have been given to official makes when engaging in a corrupt act. members of parliaments to ensure that kings and Economist Gary Becker (1968) argued that corruption, courts would not intervene with the work of the elected as well as other crimes, can be attributed to the representatives of the people. MPs, particularly those individuals’ assessment of how high the costs of being from the opposition parties, remain to this day caught are against the benefits yielded by engaging in susceptible to political persecution and legal corruption. Immunity, when applied to corruption harassment in many countries. For this reason, cases, essentially minimises the cost to almost zero, immunity protections for MPs are still very common. therefore always yielding a net gain in the cost-benefit The last systematic assessment of immunity analysis of engaging in corruption. legislation around the world, conducted by the World Bank in 2013, shows that 84 out of the 88 countries Indeed, the UNODC states that investigations into high- assessed provided some type of protection to MPs. level corruption may be significantly impeded by public The remaining four countries are Botswana, officials invoking their political immunity. For this Honduras, Malawi and Mauritius (World Bank Group reason, the UNODC claims, it is not unusual for 2013).1 immunity from prosecution to be perceived as the main cause for increased corruption levels (UNODC 2009). Immunity provisions for ministers are not as usual as immunities for members of parliament. As members of There are numerous historical and contemporary the government, ministers are usually drawn from the examples of blatant misuse of immunity to prevent the ranks of parties that form the majority and therefore proper investigation, prosecution or arrests of public have considerably more power and influence than officials. At the end of 2017, the Albanian parliament MPs, making them less susceptible to politically refused to lift the immunity from prosecution and arrest
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