Parliamentary immunity
Encyclopedia
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 vote by fear of prosecution.
, 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 known as 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.
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.
, 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.
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
.
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 elector
s 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.
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 Tribunal
, 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 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 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.
Several state constitutions
provided equivalent protections for members of state legislatures.
Parliament
A 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 , the action of parler : a parlement is a discussion. The term came to mean a meeting at which...
or legislature
Legislature
A legislature is a kind of deliberative assembly with the power to pass, amend, and repeal laws. The law created by a legislature is called legislation or statutory law. In addition to enacting laws, legislatures usually have exclusive authority to raise or lower taxes and adopt the budget and...
are granted partial immunity from prosecution. Before prosecuting, it is necessary that the immunity be removed, usually by a superior court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule 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 systemWestminster System
The 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 Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
, are protected from civil action
Civil law (common law)
Civil law, as opposed to criminal law, is the branch of law dealing with disputes between individuals or organizations, in which compensation may be awarded to the victim...
for slander and libel
Slander and libel
Defamation—also called calumny, vilification, traducement, slander , and libel —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 House
British House of Commons
The 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 650 members , who are known as Members...
. This protection is known as parliamentary privilege
Privilege
A privilege is a special entitlement to immunity granted by the state or another authority to a restricted group, either by birth or on a conditional basis. It can be revoked in certain circumstances. In modern democratic states, a privilege is conditional and granted only after birth...
. Parliamentary immunity from criminal
Criminal law
Criminal law, is the body of law that relates to crime. It might be defined as the body of rules that defines conduct that is not allowed because it is held to threaten, harm or endanger the safety and welfare of people, and that sets out the punishment to be imposed on people who do not obey...
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
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, Conservative Party leader Stephen Harper
Stephen Harper
Stephen Joseph Harper is the 22nd and current Prime Minister of Canada and leader of the Conservative Party. Harper became prime minister when his party formed a minority government after the 2006 federal election...
denounced the ruling Liberal Party on the floor of the House of Commons
Canadian House of Commons
The House of Commons of Canada 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...
, 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 FranceParliament of France
The French Parliament is the bicameral legislature of the French Republic, consisting of the Senate and the National Assembly . Each assembly conducts legislative sessions at a separate location in Paris: the Palais du Luxembourg for the Senate, the Palais Bourbon for the National Assembly.Each...
enjoy irresponsibility for what they did as parliamentarians, and partial inviolability – that is, severe restrictions for the police
Police
The police is a personification of the state designated to put in practice the enforced law, protect property and reduce civil disorder in civilian matters. Their powers include the legitimized use of force...
or justice
Justice
Justice is a concept of moral rightness based on ethics, rationality, law, natural law, religion, or equity, along with the punishment of the breach of said ethics; justice is the act of being just and/or fair.-Concept of justice:...
to arrest or detain them. Both irresponsibility and inviolability are mandated by article 26 of the Constitution of France
Constitution of France
The current Constitution of France was adopted on 4 October 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 as parliamentarians. In particular, parliamentarians are immune from prosecution for defamation committed in the exercise of his 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 jurisprudenceJurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
, 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-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
Minister of Justice (France)
The Ministry of Justice is controlled by the French Minister of Justice , a top-level cabinet position in the French government. The current Minister of Justice is Michel Mercier...
, 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
Journal Officiel de la République Française
The 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.-Publications:...
.
Controversy
The topic of parliamentarian immunity is somewhat controversial in France, especially in the context of scandals of corruptionPolitical corruption
Political 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 graft
Political corruption
Political 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 Pasqua
Charles Pasqua
Charles 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 elector
Indirect election
Indirect 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 college
Electoral college
An 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 region
Corruption scandals in the Paris region
In 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-life
Senator for life
A senator for life is a member of the senate or equivalent upper chamber of a legislature who has life tenure. , 7 Italian Senators out of 322, 4 out of the 47 Burundian Senators and all members of the British House of Lords have lifetime tenure...
, instead of being able to sit in the Constitutional Council
Constitutional Council of France
The 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'Estaing
Valéry Giscard d'Estaing
Valéry 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 Chirac
Jacques Chirac
Jacques René Chirac is a French politician who served as President of France from 1995 to 2007. He previously served as Prime Minister of France from 1974 to 1976 and from 1986 to 1988 , and as Mayor of Paris from 1977 to 1995.After completing his studies of the DEA's degree at the...
with immunity for related scandals.
Brazil
The 1988 Brazilian constitutionConstitution of Brazil
During its independent political history, Brazil has had seven constitutions. The most recent was ratified on October 5, 1988.-Imperial Constitution :Background...
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
Bail
Traditionally, bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the 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 Tribunal
Supreme Federal Tribunal
The Supreme Federal Court is the supreme court of Brazil, serving primarily as the Constitutional Court of the country. It is the highest court of law in Brazil for constitutional issues and its rulings cannot be appealed...
, 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 scandal
Mensalão scandal
The 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 Silva
Luiz Inácio Lula da Silva
Luiz Inácio Lula da Silva , known popularly as Lula, served as the 35th President of Brazil from 2003 to 2010.A founding member of the Workers' Party , he ran for President three times unsuccessfully, first in the 1989 election. Lula achieved victory in the 2002 election, and was inaugurated as...
.
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."Members of the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
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.
Several state constitutions
State constitution (United States)
In the United States, each state has its own constitution.Usually, they are longer than the 7,500-word federal Constitution and are more detailed regarding the day-to-day relationships between government and the people. The shortest is the Constitution of Vermont, adopted in 1793 and currently...
provided equivalent protections for members of state legislatures.
External links
- 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?, '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, 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 AssemblyFrench National AssemblyThe French National Assembly is the lower house of the bicameral Parliament of France under the Fifth Republic. The upper house is the Senate ....