Parliament can fulfil its role only if its members enjoy the right to freedom of expression so that they can speak on behalf of the people they represent. Members of parliament must be free to seek, receive and impart information and ideas without fear of reprisal. They are therefore generally granted a special status, intended to provide them with the requisite independence: they enjoy parliamentary privilege or parliamentary immunities with respect to their freedom of expression during proceedings in parliament.
Box 31 Parliamentary immunity in historical context1
In Great Britain, starting with the Magna Carta in 1215, the rights of the individual vis-à-vis those in power offered guarantees against the abuse of royal power, in particular freedom from arbitrary arrest and imprisonment. The Petition of Rights (1628), the Habeas Corpus Act (1679) and finally the Bill of Rights (1689) all referred to the common law tradition of individual rights, which they confirmed or further developed. The Anglo-Saxon concept of immunities is therefore rooted in the progressive development of custom, which applied to everyone, parliamentarians as well as others. Members of the British Parliament therefore did not feel the need to develop special protection, considering the common law sufficient to protect them against arbitrary action by the King or Government.
This was not so in France, where a revolution was necessary to set forth the rights of the individual vis-à-vis state power. The 1789 Declaration of the Rights of Man and of the Citizen was not the result of common agreement on basic political values that had evolved over the years. Special measures were therefore deemed necessary to ensure the independence of National Assembly Members. When, on 25 June 1789, the King ordered the Estates General to leave the building where they were meeting, the National Assembly adopted a
1 Parliamentary Immunity, background paper prepared by the Inter-Parliamentary Union and UNDP, 2006.
motion declaring the person of each deputy inviolable and further proclaiming that individuals, corporations, tribunals or commissions venturing to prosecute, arrest or attempt to arrest and detain a deputy during or after the session on account of proposals, statements or opinions given at the Estates General “are odious and traitors to the Nation, and are committing a capital crime”. This novel concept of inviolability was analysed as a measure of public order seeking to shelter the legislative power from encroachments by the executive and not as a privilege created for the advantage of a single category of individuals. Its scope and its legal and practical implications developed, and a clear distinction emerged between acts carried out by parliamentarians in their official capacity and private acts. The French model thus came to comprise the privilege of freedom of speech and parliamentary inviolability. It had a considerable impact in Europe and the former French colonies, as of course did the Westminster model in the Commonwealth community of nations.
Parliamentary immunities ensure the autonomy, independence and dignity of the representatives of the nation and of the institutions of parliament itself by protecting them against any threat, intimidation or arbitrary measure by public officials or other persons. The scope of immunities varies. The minimum guarantee, which applies to all parliaments, is non-accountability. Under this guarantee, parliamentarians in the exercise of their functions may express themselves freely without the risk of sanctions, other than that of being disavowed by the electorate, which may eventually not renew their mandates. In many countries, members of parliament also enjoy inviolability: it is only with the consent of parliament that they may be arrested, detained and subjected to civil or criminal proceedings. Inviolability is not equivalent to impunity. It merely entitles parliament to verify that proceedings brought against its members are legally well founded.
Box 32 Protecting parliamentarians’ human rights: the IPU Committee on the Human Rights of Parliamentarians
• If parliamentarians are to defend the human rights of the people they represent, they must themselves be able to exercise their human rights, including the right to freedom of expression. Noting that this often is not the case, IPU adopted a procedure for the examination and treatment of alleged violations of the human rights of parliamentarians in 1976.
• IPU entrusted the Committee on the Human Rights of Parliamentarians with the task of examining complaints concerning parliamentarians “who are or who have been subjected to arbitrary actions during the exercise of their mandate, whether parliament is sitting, [is] in recess or has been dissolved as the result of unconstitutional or extraordinary measures”. The procedure applies to members of the national parliament of any country.
• The Committee is composed of ten full members, each elected in an individual capacity for five years, bearing in mind the need for gender balance and geographical representation. It holds three closed meetings per year.
• The Committee seeks to establish the facts of a given case by cross-checking and verifying, with the authorities of the countries concerned and the complainant, the allegations and information forwarded to it. Once it has found that a complaint is admissible, the Committee aims to find a satisfactory settlement of the case in light of national, regional and international human rights law and jurisprudence. In carrying out its mandate, the Committee also applies relevant recommendations from the United Nations as well as official regional and national human rights structures and mechanisms. Satisfactory settlements can take a variety of forms, such as the release of a detained parliamentarian, the dropping of politically motivated charges, the effective investigation of abuses against a parliamentarian and legal action against their perpetrators.
• The Committee holds hearings with the parties and – subject to approval by the State concerned and fulfilment of certain minimum conditions – may carry out country missions and mandate the observation of trial proceedings against parliamentarians when there are concerns about respect for due process.
• The Committee’s decisions are public unless it considers that there are overriding reasons for keeping a decision confidential. The Committee can decide to bring a case to the attention of IPU Governing Council, its plenary decision-making body, by presenting a draft decision for adoption by it. In adopting the decision, the Governing Council expresses the concern of the entire IPU membership and invites all Member Parliaments to act, on the basis of the principle of parliamentary solidarity, in support of it.
• Complaints to the Committee may be submitted by the member of parliament concerned or his/her family or lawyers, any other member of parliament, a political party, an authoritative international or national organization competent in the field of human rights (United Nations and its specialized agencies, intergovernmental organizations, inter-parliamentary organizations and NGOs) to the following email address: postbox@ipu.org.
For more information on the Committee and its procedure, including the submission of complaints, please go to IPU website at: www.ipu.org.
“Sadly, in some countries, the human rights of parliamentarians themselves are not respected.
Their freedom of expression is denied. They are victimized, imprisoned, or even murdered for speaking out on behalf of their people. IPU plays a crucial role, through the work of its Committee on the Human Rights of Parliamentarians, in bringing an end to these injustices. Using peaceful dialogue and negotiation IPU obtains remarkable results, securing the release of political prisoners and redress for victims of violations.”
The IPU at 125: Renewing our commitment to peace and democracy, Chair’s summary of the debate, 2014.