Martin Ehl, TOL’s man in “Middle Europa,” brings up a very interesting point in his column this week. He contrasts the good sense shown by the Slovak parliament in voting to end deputies’ immunity from criminal prosecution against the constitutional slipping and sliding of the Romanian government and its allied MPs as they attempt to wrest control of a number of state institutions from the president.
However, as Martin notes, a praiseworthy step like limiting MPs’ immunity has to be seen in the wider context of a given country’s overall state of legal fitness. If respect for the rule of law is not strongly rooted in all branches of government, steps like weakening immunity or beefing up the firewall between the executive and judiciary may turn out to be little more than cosmetic fixes.
The kind and degree of legal protection afforded to legislators varies quite a lot around the world. In general there are two main kinds of immunity: inviolability, or freedom from arrest or trial, and non-accountability, or freedom of expression in the course of one’s parliamentary duties. Each variety is found in a range of strengths. In some countries deputies enjoy protection from almost all civil and criminal prosecutions; others like the U.K. and U.S. provide protection only against civil charges. Often, it is waived when a member is caught in the act of committing a crime, like the Czech MP and regional governor David Rath.
Non-accountability protection seems to be almost universal, and in general it has no time limit, so that former parliamentarians are protected for life from things they said or votes cast while in office. However, in many countries inviolability ends with the mandate, although there are a number of exceptions.
In Europe, Britain and the Netherlands have the weakest (or least paranoid) systems. British MPs have no immunity from arrest or detention in criminal cases. Israel sits at the opposite end of the scale for both inviolability and non-accountability. The former communist countries also tend to offer more rather than less immunity of both kinds.
The justification for immunity from arrest and detention is pretty clear. It’s to give elected representatives a measure of protection against malicious, politically motivated prosecution, usually from opposing parties. An analysis of immunity systems prepared by the Israeli Knesset identified three main strands of questioning followed by parliaments when deciding whether to lift a member’s immunity: does the request look like unjust persecution? does it look like a politically motivated act? and do solid factual grounds exist for the accusation?
The converse of immunity, of course, is that the more of it you have, the more impunity you enjoy. In many countries, the perception is rampant that many legislators run for office (or buy it) primarily to shield their main business, whether that be stripping public assets or taking kickbacks from public tenders.
USAID looks into this problem in a frustratingly brief comparison of parliamentary immunity in Armenia, Ukraine, and Guatemala.
Nearly two-thirds of Armenians questioned in a 2003 poll said they would like to abolish parliamentary immunity completely,
the 2006 report said. Why? Because:
“In Armenia, there is a strong public perception that a large minority of members are in the National Assembly primarily to protect corrupt business interests. This image is reinforced by the fact that despite possible evidence of corruption, government officials have only requested the lifting of parliamentary immunity twice since the democratic transition, and one of these cases was aimed at opposition members’ participation in a protest rally.”
A similar argument prevailed in the Russian State Duma a few weeks ago, when deputies voted to strip the immunity of a Communist Party MP suspected of striking a police officer during an unauthorized rally.
Ukraine is interesting because the Verkhovna Rada has prepared a bill that would limit deputies’ immunity, while leaving their non-accountability intact. What with Slovak lawmakers restricting the scope of immunity, and the Swiss parliament’s vote last year to restrict privilege to acts directly related to their official duties, it almost looks like a trend. But it is always a good thing?
The USAID report cites the case of former Ukrainian Prime Minister Pavlo Lazarenko as an illustration of the danger of politicians exploiting immunity specifically to cloak illicit activity. Lazarenko, a sort of poster boy for abuse of parliamentary privilege, is serving time in a U.S. prison for money laundering, after fleeing Ukraine in 1999 just as the parliament was about to decide whether to lift his immunity.
Clearly, there is no simple way to judge whether a country’s institutions are healthy enough for immunity to work as it should. Lazarenko exploited the strong immunity on offer, while he could; but the system also helped protect his close associate Yulia Tymoshenko when then-President Leonid Kuchma sought her prosecution in a politically-charged case. Even though she was arrested in apparent violation of her parliamentary privilege, Tymoshenko on that occasion was spared trial and possible imprisonment when parliament protected her immunity, according to USAID.
The USAID report makes the valid point that weak institutional standards are more conducive to unethical behavior on the part of legislators than the particular immunity system in use in a given country. Some of its recommendations make good sense. Parliaments, nudged by the media and civil society, should establish strong ethical codes, and above all, abide by them, in order to regain public confidence.
Another recommendation could be very useful in countries like Ukraine, Russia, and Armenia, where the chain of cause and effect between the ballot box and the actual makeup of the legislature is especially long and open to manipulation:
Parties “should publicize the criteria for candidate selection and promote rules changes that allow for open party electoral lists (so voters know the individuals, as well as the parties they are voting for).
This may discourage the corrupt from running for or winning a seat with the specific intention of gaining parliamentary immunity.”
Incidentally, Slovak judges are not affected by the new law; they retain their immunity. Ukrainian judges also enjoy immunity.
So, is Slovakia’s democracy mature enough that lawmakers no longer need the sanctuary of immunity? Probably. Ukraine, that’s a different matter. Conventional wisdom might suggest that many deputies in the Verkhovna Rada would fight tooth and nail against limiting their immunity. It will be fascinating to see if the bill becomes law, and what happens next.