The Right Amount of Legislative Immunity

It many ways, legislative or parliamentary immunity seems an anathema to the fight against public corruption. Legislative immunity shields legislators from prosecution for acts taken within their legislative ambit, sometimes even shielding them when those actions are corrupt. As my earlier post on Senator Menendez hints, even when it seems clear that legislators’ actions are not protected, the very existence of legislative immunity gives legislators room to argue and prolong their court cases – all the while continuing to serve in the legislature. Legislative immunity can undermine public confidence in lawmaking and perpetuate a sense of impunity in public officials.

That said, there is a reason most democracies have some form of legislative immunity: not because individual legislators should be shielded from prosecution, but because the legislature as an institution should be protected from intrusion and second-guessing by prosecutors and the judiciary. Of particular concern are politically-motivated prosecutions brought by the government against legislators from opposing parties. Turkey provides a recent example. This past May, Turkey’s legislature voted to lift parliamentary immunity and pave the way for prosecution of pro-Kurdish legislators accused of supporting terror (see here). While concerns about terrorism are very real in Turkey, this move falls clearly within President Erdogan’s broader efforts to consolidate power and move away from democratic rule.

Ultimately, both concerns about impunity and legislative independence are valid. The question is how to strike the appropriate balance. Legislative immunity can take many forms, and there is likely no single “best” model. The most appropriate form of legislative immunity will likely depend instead on a range of contextual factors. Here I consider several critical ones:

  • The first, and in some ways most fundamental, question about legislative immunity concerns whether the immunity attaches more to legislative acts or to legislators. Here, the traditional distinction is between the so-called English and French models. The English model (“non-liability”) protects actions of legislators as they relate to the exercise of their legislative duties. (This protection is sometimes conditioned on location. Words spoken in parliamentary debates are protected; those same words spoken to the press might not be.) The French model (“inviolability”), by contrast, protects legislators’ actions outside parliament, even actions unrelated to the exercise of legislative duties. (These protections, however, can often waived by consent from the parliament as a whole.) While countries’ legislative immunity provisions do not always map neatly into this “non-liability vs. inviolability” paradigm (see, for example, here, here, here, and here), it nonetheless remains a useful starting point, and relates to more specific issues concerning settings in which legislative immunity might apply. Broadly speaking, the inviolability approach may be better suited to countries that are transitioning from autocracy to democratic rule, and where one party is dominant; countries with only fledgling democracies may need broader protections so political parties and institutions can have breathing room to develop (see here). By contrast, in countries with well-developed democratic institutions and robust freedom of speech protections, legislative immunity can be cut back dramatically, in accordance with a (relatively restrictive) non-liability model. As a general rule, where the threat of politically-motivated prosecution is diminished, so too is the need for immunity. Also countries with a long history of corruption and abuse of immunity may need legislative immunity that is narrower in scope.
  • Another, somewhat related consideration may be ease of access to information, and its connection to the question whether legislative immunity should extend to statements made by legislators to the media. (For example, in Kenya most legislative statements made in radio and television interviews are not protected, but in Poland and Italy, such conduct can be protected (see here)). In countries with technological barriers to disseminating information about a legislator’s statements or votes, the latter approach may make more sense.
  • An additional question is whether the availability of immunity should depend on the seriousness of the offense alleged—a consideration separate from where or in what context the legislator engaged in the allegedly unlawful acts. (For examples of this approach, pointing in opposite directions, consider the fact that Rwandan parliamentarians may not be prosecuted for serious felonies absent a vote from legislature, while in Ireland, by contrast, treason and other crimes carrying a prison term are exempt from immunity and can be prosecuted.) To my mind, there is little reason to base the availability of immunity on the relative severity of the offense. I understand the instinct not to protect legislators accused of very serious offenses; it seems outrageous to shield legislators from murder charges. I also understand the instinct not to protect legislators accused of minor offenses; crimes carrying small fines and minimal jail time seem poor vehicles for political prosecution. However, to me objections along these lines appear to be motivated, at their core, by concerns about legislative immunity more generally. The better limiting principle is not the severity of the crime charged, but rather whether the particular action implicates legitimate legislative activity. Thus legislative immunity would not cover murder or traffic violations, not because one is too serious and the other is not serious enough, but rather because neither has much to do (we hope) with legitimate legislative activities.
  • We must also ask whether the legislature, acting collectively, should be able to waive the immunity of individual members. Countries like Denmark, Finland, Germany, and Ukraine have this so-called “conditional immunity” (see here). Some believe that this sort of conditional immunity is valuable because it can spur public dialogue on corruption and can allow for prosecutions in appropriate circumstances where they otherwise would not occur. This makes sense in a competitive system, where opposition parties have a substantial share of the parliament, parliamentary majorities change with some regularity, and the parliament is inclined towards debate. However, in systems where the legislature is dominated by one unified political party or a coalition that functions as a single unit, conditional immunity is little more than a formality. In those countries, the legislature should not have the option to waive immunity, at least not without safeguards for minority members.
  • In some countries, legislative immunity protects just the legislators themselves, while in others legislative immunity protections also extend to the legislators’ staffs. In the majority of cases, the latter approach is more appropriate. In most democracies, certainly in large developed countries, legislators rely heavily on their staffs to formulate policy positions and carry out core elements of their legislative functions. To prosecute those staffers is to hamstring the activity of the legislator. That said, in countries where staffs are smaller and most policy positions are dictated by the party, those protections are less necessary. Yet even there, as long as immunity is limited to activities that help fulfill the legislator’s core duties, I see little reason to not to afford protection to staff as well.

Legislative immunity’s value will ultimately depend both on the willingness of prosecutors and courts to respect immunity, and on their willingness prosecute and convict when such immunity does not apply. The above factors do not capture all the ways in which immunity varies, but they are important to consider when deciding precisely which protections legislators should be given. Legislative immunity is the sum of many parts. Unsurprisingly the composition of those parts and the context in which they operate matters.

2 thoughts on “The Right Amount of Legislative Immunity

  1. Pingback: Wednesday News Wall 27 July 2016 | Arconn Consult

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