Parliamentary immunity, also known aslegislative immunity, is a system in whichpoliticians or other political leaders are granted fullimmunity from legal prosecution, bothcivil prosecution andcriminal prosecution, in the course of the execution of their official duties.
Advocates of parliamentary immunity suggest the doctrine is necessary to keep a check on unauthorised use of power of the judiciary, to maintain judicial accountability, and to promote the health of democratic institutions.[1]
Legislators in countries using theWestminster system, such as theUnited Kingdom, are protected fromcivil action andcriminal law forslander and libel by parliamentary immunity whilst they are in theHouse. This protection is part of the privileges afforded the Houses of Parliament underparliamentary privileges. Parliamentary immunity fromcriminal 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.[2]
The1988 Brazilian 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. Members of parliament can be arrested only for crimes if caught at the time of the criminal actin flagrante for a crime with no possibility ofbail. These arrests can be overruled by a floor vote of the particular parliament chamber that parliamentarian belongs to.[3][4]
Criminal proceedings may be suspended for crimes committed only after a parliamentarian begins his term of office, and requests for suspensions need to be approved by majority of members of Parliament. Members of the National Congress as well as other high level politicians are prosecuted and judged exclusively by the Supreme Court, as opposed to the lower courts.[5]
As of 2007, no Brazilian politician has ever been convicted by the Supreme Federal Tribunal of any crime since parliamentary immunity was instituted in 1988.[6]
After theMensalão scandal in 2005, the Supreme Federal Tribunal surprised many when, on August 24, 2007, it accepted the indictments of 40 individuals, most of which are former or current federal deputies, all of which were allies of Brazilian presidentLuiz Inácio Lula da Silva.[7]
Members of theParliament of France enjoyirresponsibility for what they did as parliamentarians, and partialinviolability – that is, severe restrictions for thepolice orjustice to arrest or detain them. Both irresponsibility and inviolability are mandated by article 26 of theConstitution of France.
These dispositions are somewhat controversial, following abuse of such privileges.
Article 46 of Germany'sConstitution states: "At no time may a Member be subjected to court proceedings or disciplinary action or otherwise called to account outside the Bundestag for a vote cast or for any speech or debate in the Bundestag or in any of its committees," with exceptions made for "defamatory insults."It also states that "a Member may not be called to account or arrested for a punishable offence without permission of the Bundestag unless he is apprehended while committing the offence or in the course of the following day."Furthermore, theBundestag may also order that a detainment or prosecution of a member be suspended.[8]
The states of Germany also have similar procedures for their legislative bodies.
Members of theHellenic Parliament are immune from criminal prosecution, arrest or detention while in office,[9] with the exception of crimes committedin flagrante delicto.[10] They are also immune from having to provide any information to any authority regarding their legislative functions and deliberations.[9] However, both the Constitution and the Standing Orders allow for the Public Prosecutor's Office to request from Parliament to lift an MP's immunity for a particular crime, with MPs deciding through open balloting.[11] Alleged crimes committed by members of the Cabinet (including non-MPs) or the President of the Republic are first investigated by an ad hoc parliamentary committee, with MPs then voting on the committee's recommendations. Should parliament determine that there is sufficient evidence for prosecution, anad hocSpecial Court is set up.[12]
Parliamentary immunity in Italy was re-instated in 1948 by the Constituent Assembly, to prevent cases such as "Francesco Saverio Nitti, whose house was searched and ransacked by the fascist police in the fall of 1923;Giacomo Matteotti, murdered by fascists June 10, 1924 for his work as a deputy of opposition;Giovanni Amendola, beaten inMontecatini in 1925 and died inCannes in April 1926;Antonio Gramsci, whose parliamentary mandate was revoked on Nov. 9, 1926 and who was tried in 1928 by a special court for his activities as a Member of Parliament and as a political opponent. The same court had him imprisoned and his correspondence was seized".[13]
Immunity was limited in 1993, but abuse continues by means of denying authorizations to certain judiciary acts, like wiretapping;[14] therefore, in the final judgment, the Constitutional Court often overturns the decisions of Parliament to protect its members, authorising the activities of the judiciary.[15]
Parliamentary immunity inPortugal is provided for in theConstitution of the Portuguese Republic and aims to protect MPs in the exercise of their duties, guaranteeing them independence and autonomy from possible pressure or reprisals, through a two-tiered immunity:[16][17]
Parliamentary immunity can be waived in certain circumstances, following a specific procedure:
Parliamentary immunity does not prevent a member of parliament from being investigated or the judicial process from going ahead. It only protects the MP from being arrested or detained without the due authorisation of the Assembly of the Republic, except in situations offlagrante delicto for serious crimes.
Parliamentary immunity in theAutonomous Regions of theAzores andMadeira in Portugal follows similar principles to those applied to members of the Assembly of the Republic,[18] but adapted to the context of the regional Legislative Assemblies. This immunity is regulated by the respective Political-Administrative statutes of the Autonomous Regions and by the Constitution of the Portuguese Republic.
Legislative immunity in South Korea was established in the1987 Constitution, which ended nearly 30 years of military dictatorship followingpro-democracy movements. The Constitution grants lawmakers two types of immunity: immunity from arrest and detention and immunity from criminal and civil liabilities for speeches made during sessions or votes cast in the Assembly.
According toArticle 44 of the Constitution, members of theNational Assembly cannot be arrested or detained during legislative sessions unless the Assembly approves it or the member is caught in the act of committing a crime (i.e., caughtin flagrante delicto). Article 44 was established in response to South Korea’s long history of dictatorial regimes detaining legislators to prevent them from voting in a way that the President might disagree with or to check the President’s powers.
While Article 44 specifically addresses arrests and detentions,Article 45 immunizes members of the National Assembly against criminal and civil liabilities for opinions officially expressed or for votes cast in the Assembly. However, unlikepresidential immunity, which shields the president from criminal charges while in office, legislative immunity does not protect legislators from criminal charges for conducts that fall outside of Article 45, even during legislative sessions. Most notably in 2013, thearrest motion of Assemblyman Lee Seok-ki—suspected of plotting with several members of his party to overthrow the government if a war broke out with North Korea—was submitted to the National Assembly. The motion passed, leading to Lee's arrest, indictment, trial, and conviction.
InSpain, parliamentarians in the nationalCongress of Deputies andsenators as well as legislators serving inregional administrations and certain members of theSpanish royal family are afforded 'Aforos', thus becoming 'aforados' (lit. 'afforded ones') and enjoy privileges granted in theConstitution of Spain. Theseself-regulatory organizations' membership privileges are reflected in the following parliamentary prerogatives:
Currently, there are 10,000 persons in Spain with parliamentary immunity, and only a fifth of them are politicians.
Between 26 October 1961 and 12 March 1998 Turkish prosecutors made 2,713 requests to suspend the immunity of 1,151 deputies. Only 29 requests were granted. Six of these were the deputies of theDemocracy Party arrested in 1994 because of their openly support for theKurdistan Workers' Party (PKK) and separatist activities like the one asLeyla Zana wore a napkin in the Kurdish colors red, green, yellow.[19]
In connection with theErgenekon trials (from 2008), some accused have been selected as parliamentary candidates specifically to give them legal protection via parliamentary immunity.[citation needed]
On 20 May 2016, an amendment to the Constitution has been passed by the Parliament, removing parliamentary immunity. Due to surpassing the two-thirds majority threshold, the amendment was able to pass without a constitutional referendum.[20] In November of the same year, nine members of parliament of thePeoples Democratic Party (HDP) were arrested.[21] On the 4 June 2020 another three Turkish MPs were dismissed from parliament and arrested, two from the HDP and one from theRepublican People's Party (CHP).[22]
Article 80 of theUkrainian Constitution states that parliamentary immunity is guaranteed to thepeoples' deputies ofUkraine. The peoples' deputies of Ukraine do not have legal responsibility for their votes and opinions in parliament and its appendant bodies, except for responsibility for insult or defamation.[23]
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."[24]
Members of theUnited 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.
Severalstate constitutions provided equivalent protections for members ofstate legislatures.
National Assembly deputies and delegates of thePeople's Council are protected from being arrested and prosecuted. National Assembly deputies cannot be dismissed or sacked by the agency, organization or unit where the deputy works. These protections can be revoked by the National Assembly (usually as approval from theStanding Committee) or the People's Council (local legislatures), respectively.
LAW ON ORGANIZATION OF THE NATIONAL ASSEMBLY[25]
Article 37. The right to immunity of National Assembly deputies1. No National Assembly deputy may be arrested, held in custody, detained, prosecuted or have his/her place of residence or workplace searched, unless so consented by the National Assembly or, when the National Assembly is in recess, by the Standing Committee of the National Assembly. The proposal to arrest, put in custody, detain or prosecute a National Assembly deputy or to search his/her place of residence and workplace must fall under the jurisdiction of the Procurator General of the Supreme People’s Procuracy.
In case a National Assembly deputy is taken into custody for a flagrant offense, the agency holding the deputy in custody shall immediately report the case to the National Assembly or its Standing Committee for consideration and decision.
2. No National Assembly deputy may be removed from office, dismissed, forced to resign or sacked by the agency, organization or unit where he/she works, unless so consented by the Standing Committee of the National Assembly.
LAW ON ORGANIZATION OF LOCAL GOVERNMENT[26]
Article 100. Immunities of delegates of the People’s Council1. Delegates of the People’s Council shall not be subjected to imprisonment, custody, detention, prosecution, or house or office search within the meeting of the People’s Council, or without consent from the People’s Council or the Standing Committee of the People’s Council.
2. In case delegates of the People’s Council is temporarily suspended because of criminals caught in the act, the detaining authority must immediately report to the People’s Council or the Standing Committee of the People’s Council for consideration and decision.