Parliamentary immunity, also known as
legislative immunity, is a system in which members of the
parliamentA parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French parlement, the action of parler : a parlement is a discussion. The term came to mean a meeting at...
or
legislatureA legislature is a type of deliberative assembly with the power to pass, amend and repeal laws. The law created by a legislature is called legislation or statutory law...
are granted partial immunity from prosecution. Before prosecuting, it is necessary that the immunity be removed, usually by a superior
courtA court is a body, often a governmental institution, with the authority to adjudicate legal disputes and dispense civil, criminal, or administrative justice in accordance with rules of law....
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.
Legislators in countries using the
Westminster systemThe Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....
, such as the
United KingdomThe United Kingdom of Great Britain and Northern Ireland is a sovereign state located off the northwestern coast of continental Europe. It is an island country, spanning an archipelago including Great Britain, the northeastern part of Ireland, and many small islands...
, are protected from
civil actionCivil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals and/or organizations, in which compensation may be awarded to the victim...
for
slander and libelIn law, defamation–also called calumny, libel , slander , and vilification–is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image...
by parliamentary immunity whilst they are in the
HouseThe House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 646 members, who are known as "Members...
.
Parliamentary immunity, also known as
legislative immunity, is a system in which members of the
parliamentA parliament is a legislature, especially in those countries whose system of government is based on the Westminster system modeled after that of the United Kingdom. The name is derived from the French parlement, the action of parler : a parlement is a discussion. The term came to mean a meeting at...
or
legislatureA legislature is a type of deliberative assembly with the power to pass, amend and repeal laws. The law created by a legislature is called legislation or statutory law...
are granted partial immunity from prosecution. Before prosecuting, it is necessary that the immunity be removed, usually by a superior
courtA court is a body, often a governmental institution, with the authority to adjudicate legal disputes and dispense civil, criminal, or administrative justice in accordance with rules of law....
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 systemThe Westminster system is a democratic parliamentary system of government modelled after the politics of the United Kingdom. This term comes from the Palace of Westminster, the seat of the Parliament of the United Kingdom....
, such as the
United KingdomThe United Kingdom of Great Britain and Northern Ireland is a sovereign state located off the northwestern coast of continental Europe. It is an island country, spanning an archipelago including Great Britain, the northeastern part of Ireland, and many small islands...
, are protected from
civil actionCivil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals and/or organizations, in which compensation may be awarded to the victim...
for
slander and libelIn law, defamation–also called calumny, libel , slander , and vilification–is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government or nation a negative image...
by parliamentary immunity whilst they are in the
HouseThe House of Commons is the lower house of the Parliament of the United Kingdom, which also comprises the Sovereign and the House of Lords . Both Commons and Lords meet in the Palace of Westminster. The Commons is a democratically elected body, consisting of 646 members, who are known as "Members...
. This protection is known as
parliamentary privilegeA privilege—etymologically "private law" or law relating to a specific individual—is a special entitlement or immunity granted by a government or other authority to a restricted group, either by birth or on a conditional basis. A privilege can be revoked in some cases. In modern...
. Parliamentary immunity from
criminalThe term criminal law, sometimes called penal law, refers to any of various bodies of rules in different jurisdictions whose common characteristic is the potential for unique and often severe impositions as punishment for failure to comply...
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
CanadaCanada is a country occupying most of northern North America, extending from the Atlantic Ocean in the east to the Pacific Ocean in the west and northward into the Arctic Ocean...
, Conservative Party leader
Stephen HarperStephen Joseph Harper, PC, MP is the 22nd and current Prime Minister of Canada, and leader of the Conservative Party. Harper became Prime Minister after his party won a minority government in the January 2006 federal election...
denounced the ruling Liberal Party on the floor of the
House of CommonsThe House of Commons is a component of the Parliament of Canada, along with the Sovereign and the Senate.
The House of Commons is a democratically elected body, consisting of 308 members known as Members of Parliament .
Members are elected by simple...
, 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 FranceThe French Parliament or Parliament of France is the deliberative and legislative branch of the Government of France. The current parliamentary system in France is bicameral, and the Parliament is composed of:...
enjoy
irresponsibility for what they did as parliamentarians, and partial
inviolability – that is, severe restrictions for the
policeA police service is a public force empowered to enforce the law and provide security through the legitimized use of force.The term is most commonly associated with police services of a state that are authorized to exercise the police power of that state within a defined legal or territorial area of...
or
justiceJustice is the concept of moral rightness based on ethics, rationality, law, natural law, fairness, or equity.-Concept of justice:Justice... concerns the proper ordering of things and persons within a society. As a concept it has been subject to philosophical, legal, and theological reflection and...
to arrest or detain them. Both irresponsibility and inviolability are mandated by article 26 of the
Constitution of FranceThe current Constitution of France was adopted on October 4, 1958. It is typically called the Constitution of the Fifth Republic, and replaced that of the Fourth Republic dating from 1946. Charles de Gaulle was the main driving force in introducing the new constitution and inaugurating the Fifth...
.
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
jurisprudenceJurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal philosophers, hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions. Modern jurisprudence began in the 18th century and was focused on the first...
, 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-handedRed-handed may refer to:* Red-handed Howler, New World monkey* Red-handed Tamarin, New World monkey* The expression Caught red-handed or In flagrante delicto...
) 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 JusticeThe French Minister of Justice is a top-level cabinet position in the French government. The current Minister of Justice is Michèle Alliot-Marie.The Minister's roles are to:...
, 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 OfficielThe Journal Officiel de la République Française is the official gazette of the French Republic. It publishes the major legal official information from the national Government of France.It actually consists of several publications:...
.
Controversy
The topic of parliamentarian immunity is somewhat controversial in France, especially in the context of scandals of
corruptionPolitical corruption is the use of legislated powers by government officials for illegitimate private gain. Misuse of government power for other purposes, such as repression of political opponents and general police brutality, is not considered political corruption. Neither are illegal acts by...
or
graftPolitical corruption is the use of legislated powers by government officials for illegitimate private gain. Misuse of government power for other purposes, such as repression of political opponents and general police brutality, is not considered political corruption. Neither are illegal acts by...
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 PasquaCharles Pasqua is a French businessman and Gaullist politician. He was Interior Minister from 1986 to 1988, under Jacques Chirac's cohabitation government, and also from 1993 to 1995, under the government of Edouard Balladur...
was voted in as a senator by conservative
electorIndirect election is a process in which voters in an election don't actually choose between candidates for an office but rather elect persons who will then make the choice. It is one of the oldest form of elections and is still used today for many upper houses and presidents...
s of the Paris region (the Senate is elected by an
electoral collegeAn electoral college is a set of electors who are selected to elect a candidate to a particular office. Often these represent different organizations or entities, with each organization or entity represented by a particular number of electors or with votes weighted in a particular way...
). 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 regionIn the 1980s and 1990s there were, in the Paris region , multiple instances of alleged and proved political corruption cases, as well as cases of abuse of public money and resources...
.
Likewise, in early 2005, the idea was suggested that former Presidents of France should become
senators-for-lifeA senator for life is a member of the senate or equivalent upper chamber of a legislature who has life tenure., the Italian Senate continues to have lifetime senators...
, instead of being able to sit in the
Constitutional CouncilThe Constitutional Council is the highest constitutional authority in France. It was established by the Constitution of the Fifth Republic on 4 October 1958, and its duty is to ensure that the principles and rules of the constitution are upheld.Its main activity is to rule on whether proposed...
. Ostensibly, this idea was a means to solve the problem of such former presidents as
Valéry Giscard d'EstaingValéry Marie René Georges Giscard d'Estaing is a French centre-right politician who was President of the French Republic from 1974 until 1981...
, 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 ChiracJacques René Chirac served as the President of France from 17 May 1995 until 16 May 2007. As President he also served as an ex officio Co-Prince of Andorra and Grand Master of the French Légion d'honneur. Chirac was the second-longest serving President of France , behind François Mitterrand...
with immunity for related scandals.
Brazil
The
1988 Brazilian constitutionBecause of its volatile political history, Brazil has had a number of constitutions. The most recent was ratified on October 5 1988.-Imperial 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 (.) 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).
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" (.), which allows him to be tried by the
Supreme Federal TribunalThe Supreme Federal Court is the supreme court of Brazil. It is the highest court of law of the Brazil and its rulings cannot be appealed. The Court has the power of judicial review and judges the constitutionality of laws passed by the National Congress...
, as opposed to the lower courts.
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.
After the
Mensalão scandalThe Mensalão scandal took place in Brazil in 2005 and threatened to bring down the government of Luiz Inácio Lula da Silva. Mensalão is a neologism and variant of the word for "big monthly payment"...
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 SilvaLuiz Inácio Lula da Silva , known popularly as Lula, is the thirty-fifth and current President of Brazil.A founding member of the Workers' Party , he ran for President three times unsuccessfully, first in the 1989 election. Lula achieved victory in 2002, and was inaugurated as President on 1...
.
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."
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?, '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, on Parliamentary Immunity in the European Parliament and the Member States of the European Union, (Brussels: European Parliament, ECPRD, 2001).
- UK Parliament, 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
The French National Assembly is the lower house of the bicameral Parliament of France under the Fifth Republic. The other is the Senate ....