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Immunities of members of parliament
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Overview | Key points | Papers presented | Comments and questions
Overview
The special responsibilities that members of parliament have as representatives of the people are recognised in the special protections that are bestowed on parliamentarians in undertaking their duties. Parliamentary privilege protects members of parliament from legal action resulting from an opinion expressed or vote cast. Parliamentary immunity protects parliamentarians against civil or criminal proceedings for acts undertaken outside the exercise of their parliamentary function.
A questionnaire completed by 72 parliamentary assemblies from 52 countries provided an insight into the way in which different parliaments deal with the question of immunity for their members. A report presented to the ASGP meeting in Moscow in September 1998 outlined the key findings of the questionnaire.
Key points
Parliamentary privilege - freedom of speech
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In the great majority of countries, the principle of parliamentary privilege is guaranteed by the constitution.
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There has been no recent modification to legislation concerning freedom of speech in most countries - exceptions include Australia and Ireland where a right of reply procedure has been provided for those referred to negatively during a parliamentary sitting, with Ireland also introducing a new law concerning freedom of speech for those called to give evidence before parliamentary committees; the United Kingdom where members of parliament can renounce their privilege in the context of proceedings for slander/libel and defamation; and France where there has been an evolution of jurisprudence regarding the reach of privilege.
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Privilege at first instance protects members of parliament but also can extend to all persons who take part in parliamentary activities, including officials, witnesses, lawyers and petitioners.
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The timing of when privilege comes into effect varies between countries. In some countries, members of parliament enjoy protection from the moment of their election, on the condition that the election is not subsequently declared invalid (examples include Belgium, Chile, Egypt, Gabon and Thailand). In other countries the taking of the parliamentary oath is considered the starting point for protection (examples include Argentina, Bangladesh, the Philippines, the Netherlands and Zambia).
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In some countries the freedom of speech principle is only observed during parliamentary sittings (eg Canada, Chile, Malaysia, Mozambique, New Zealand and United Kingdom). In other countries protection applies in all circumstances, whether or not parliament is in session (eg Denmark , Guinea , Kuwait and Sri Lanka).
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The freedom of speech principle ends at the expiration of the mandate or dissolution of parliament, but privilege remains in force for what took place during the exercise of the mandate.
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In a large number of countries freedom of speech is not limited in location, being accorded both outside as well as within the parliamentary estate, so long as it relates to the execution of a member's parliamentary mandate (eg Australia, Croatia, Mali, Portugal and Sri Lanka). In certain countries freedom of speech only applies within the parliamentary buildings (eg Germany, Egypt, India and Namibia).
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In a number of countries privilege extends to the reproduction of a parliamentarian's words that are covered by privilege, on the condition that the reproduction is accurate and in good faith (eg Bangladesh, Canada, Estonia, Mozambique and the Philippines). In some countries the privilege in such circumstances is not absolute but is qualified, with courts and tribunals having jurisdiction (eg Australia, New Zealand and Ireland). Some countries do not recognise a privilege of this type (eg Kenya, Republic of Korea, Poland and Thailand).
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In most countries the freedom of speech principle is subject to certain restrictions, such as insults against the head of state and criticisms of the judiciary.
- Most countries regard the freedom of speech accorded to a member of parliament as being of a public nature and the member is not able to renounce it. Some countries (such as Canada and Guinea) allow the member to make the decision, while in other countries privilege can be lifted by a decision of the assembly (eg France, Namibia and Uruguay).
Parliamentary immunity
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The great majority of countries provide some form of protection to members of parliament against civil or criminal proceedings for acts undertaken outside of their parliamentary function. In some countries the concept is limited to protection against arrest in civil cases, exemption from the obligation to appear before a tribunal or court when parliament is sitting, and an exemption from the obligation of being a juror.
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In countries where a system of parliamentary immunity is in force, the principle is generally found in the constitution and generally has remained unchanged, with hardly any evolution over time.
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Parliamentary immunity in many countries applies from the day the member is elected. In some countries that immunity is subject to any invalidation of the member's election (eg Belgium). In other countries the immunity applies from the day of the taking of the oath by the member.
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In some countries the immunity does not apply during parliamentary breaks.
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The place where an offence is committed generally does not have any relevance to the application of parliamentary immunity, although in some countries of the Anglo-Saxon and Scandinavian traditions the place of the offence does has some bearing on the extent of the protection.
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The nature of the offence generally impacts on the extent of the protection, but in different ways in different countries. Criminal offences are an exception in many countries of the Anglo-Saxon tradition. In some countries exceptions are made for cases that are particularly shocking. Other countries, however, take the view that immunity should only apply in relation to serious cases and not for minor infractions.
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The minimal degree of protection generally is protection against arrest, but there are variations between countries on the definition of arrest.
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The practice in relation to protection against committal or summons before a court or tribunal varies between countries. In some countries, committal to or summons before a court is possible without the approval of the assembly, but only in criminal proceedings.
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There are few countries in which parliamentary immunity cannot be lifted.
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In most countries that apply the principle of parliamentary immunity, it is parliament alone that can lift the immunity.
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In many countries the lifting of immunity must be asked for by the public prosecutor. In some countries it is asked for by the court.
Papers presented
The report on the immunities of members of parliament is reproduced in Commonwealth and Parliamentary Information, No. 175, 1998.
The immunities of members of parliament
Robert Myttenaere, Belgium
Comments and questions
We welcome comments and questions as a means of continuing discussion on these issues. These should be emailed to the ASGP Joint Secretaries:
Comments and questions, along with responses to questions, will be posted on this site.
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