Does immunity lead to impunity? Experiences from four countries

The concept of parliamentarian immunity is as old as parliaments are. It once was imposed to protect members of parliament from government pressure and other influential actors; they should be enabled to speak and criticize freely inside parliament. But this privilege can also be misused – and often is. Parliament members and other politicians misuse their formal protection to avoid prosecution both inside and outside parliament. During the session “Does immunity lead to impunity“, experts from Colombia, Peru, Indonesia and Brazil explained the legal situation as well as experiences in their country.

Colombia

Fernando Cepeda (Photo by Alexandre Alves/Divulgação)

Fernando Cepeda (Photo by Alexandre Alves/Divulgação)

In Colombia, the immunity privilege was abused extensively during the 1980s. The most notable case, said Fernando Cepeda, political science professor from Bogotá, was when drug lord Pablo Escobar was elected as a member of congress to be protected from prosecution. In 1991 a new constitution was promulgated by a constituent assembly. In this constitution, the immunity privilege was abolished and replaced by a very strict law. The Supreme Court remained the only instance for accusations against congress members. Even minimal offences lead to the so called “political death”. Once sanctioned, a congress member not only loses the mandate, but is also prohibited from participating in any future elections. Fifty-seven members of parliament have been sanctioned this way thus far.

Peru

Astrid Leigh (Photo by Alexandre Alves/Divulgação)

Astrid Leigh (Photo by Alexandre Alves/Divulgação)

The Peruvian Constitution grants immunity to all members of parliament. To prosecute a parliamentarian, the Supreme Court has to ask Congress to lift the immunity of the accused. Furthermore, there is an Ethics Commission in Parliament – but its work is not very effective according to Astrid Leigh, a Peruvian lawyer. “Congressmen are judged by their own peers,” she said. Nonetheless, Leigh is not totally opposed to parliamentarian immunity. Especially in fragile democracies, she said it can be a protection from politically motivated charges. It can also grant members of parliament the freedom to criticize and investigate the government. But the most important challenge is to look for more integrity (in the last elections 33 of 130 elected members of parliament in Peru had pending trials or had even been convicted). And at this point, she suggests, civil society has to step in and urge moral politics.

Indonesia

Bambang Widjojanto (Photo by Alexandre Alves/Divulgação)

Bambang Widjojanto (Photo by Alexandre Alves/Divulgação)

Since 2003, a specialized prosecution and investigation body for corruption and money laundering crimes in Indonesia began: the KPK. The special authority is independent from the executive, legislature, judiciary and any other powers. The immunity granted to Indonesian members of parliament in Article 20 of the Constitution only covers the privilege in performing his duty, task and authority. No immunity is given for any committed criminal or corrupt act. Bambang Widjojanto, a KPK commissioner, reported that 65 members of parliament, eight ministers and several other politicians have been convicted in the last nine years.

Brazil

Wellington Saraiva (Photo by Alexandre Alves/Divulgação)

Wellington Saraiva (Photo by Alexandre Alves/Divulgação)

Absolute immunity doesn’t exist for members of parliament in Brazil. But there is some kind of formal immunity, as members of the National Congress as well as other high level politicians are prosecuted and judged exclusively by the Supreme Court. They do not run the four levels of jurisdiction as other individuals do. Wellington Saraiva of the prosecutor´s office in the Minstério Público Federal criticized this: “Every woman and man should be judged by the same judges.”

According to Mr. Saraiva, another problem is the extreme complexity of judicial proceedings in Brazil and the lack of capacity in the courts. As it is very easy to appeal to the superior courts and possible to hand in tens of different appeals in every case, processes in Brazil can last 15-20 years. And the Supreme Court is overloaded. Just in 2010, 72,000 cases reached the highest Brazilian court. Since 1988 only one member of parliament was convicted by the Supreme Court.

The so called mensalão (criminal case # 470) has seen 25 convictions of politicians as well as businesspeople.  This is a watershed moment, but can´t be seen as a turning point, according to Mr. Saraiva. He mentioned the severe difficulty in determining individual sanctions against the 37 defendants. This is due to the prospect of tens of appeals, paired with the fact that thousands of other cases remained in the Supreme Court during the months of mensalão. The most important challenge to prevent impunity with members of parliament, says Mr. Saraiva, is judicial reform.

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