Joseph Maingot, Q.C. FOR THE YEMEN POST

Among the demands the citizens of Egypt, Tunisia, Yemen and Libya clamoured for in their revolutions, and what they are still in the throes to accomplish, is for the rule of law to prevail – for true equality before the law. Libya had no constitution since the overthrow of King Idris by Moammar Ghadafi in 1969. The constitutions of Egypt, Tunisia and Yemen spell out in clear language that the foundation of the republic is the principle of the rule of law and, citizens are equal before the law. Yet these same constitutions provide that members of their parliaments have not only parliamentary immunity for what they say in parliament, but are clothed additionally with parliamentary inviolability, i.e., protection from the criminal process in various ways: they may not be prosecuted, or detained, or arrested without the prior consent of their parliament. Even that may be abused for the Washington Post reported that when Madeleine K. Albright visited Egypt in 2005, she met Ayman Nour, an opposition member of Egypt’s parliament who was sharply critical of President Hosni Mubarak’s failing policies. Shortly after she left, Nour was stripped of his parliamentary immunity by a government sponsored motion, was arrested and held in solitary confinement. In the absence of a defined respect for civil and human rights, the practice of the constitution may not conform to the constitutional text. Examples abound also in those countries that were formerly behind the Iron Curtain. Another example is Amendment XV of the Constitution of the United States, enacted in 1870, five years following the end of the Civil War, which states:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, colour or previous condition of servitude.

Nothing could be clearer, but it took nearly one hundred years to be put into practice because the equality principle was impotent in the context of a community that was apathetic or hostile (Southern states). If this could happen in the United States, where respect for the Constitution and its highest court is strong, it could happen and does happen elsewhere.

Parliamentary inviolability claims special treatment for parliamentarians, which offends the characteristic of the rule of law about equality before the law. In liberal democratic societies at least, one of the broad restrictions or conditions imposed by the constitution, is the idea of the separation of powers; legislative, executive and judicial.

The constitutions of Tunisia, Egypt and Yemen set out similar provisions. It is the executive branch of government that has the discretion to prosecute. By insisting that they are inviolable, parliamentarians usurp a role that is not theirs, and intrude upon the rule of law and equality before the law. Mind you, Tunisia, Egypt and Yemen are not the only nations that provide for parliamentary inviolability for their parliamentarians, and yet in the same constitution provide for equality before the law.

While Article 9 of Westminster’s Bill of Rights of 1689 limits members of Parliament to the immunity of freedom of speech in Parliament, a law followed in Commonwealth countries and the Congress of the United States, more than 70% of the nations of the world spell out clearly in their constitutions that their parliamentarians are protected from the criminal process. This alarming number includes every European parliament save The Netherlands, and, members of the European Parliament. The Associated Press wrote, in 2005 in an article entitled ‘Czech Legislators Lead Europe in Immunity Protection for Wrongdoing’…

In 1998, then-Czech Senator Jan Kavan was driving a car that slammed into three other vehicles in Prague; nobody was injured. Citing immunity, he refused to take an alcohol test. Kavan went on to serve as foreign minister and U.N. General Assembly president 2002-2003. Even the immunity committee’s head, Eva Dundackova, contends the protections are outdated. “That form of immunity is a useless leftover and should be abandoned” she said. … “Their immunity (inviolability) is outrageous,” said Katerina Benova, a 32-year-old porter from Prague. “They should serve the nation-but it seems they just serve themselves.”

In 2004, Parliamentary Affairs reported that Silvio Berlusconi was “under investigation for a variety of crimes (hence the rumours that he had entered politics in order to try to protect himself from the judiciary).”

In France, it would have required a resolution of the National Assembly to incarcerate Alain Juppé following his conviction for corruption in 2004.

In 2003, letters to the Editor of the Jerusalem Post noted the ‘problem is that the law regarding such immunity (inviolability) in Israel is totally without merit compared to the U.S.’s. There has never been immunity for acts committed outside or unrelated to member’s immediate legislative duties.’ An editorial later that same year said ‘members are not entitled to place their person above the law; No member of the Knesset should appear to enjoy privileges denied other folk.’

Parliamentary inviolability may be said to have arisen on July 23, 1789, when Honoré Mirabeau, speaking in the newly formed revolutionary National Assembly of France which had been established on June 17, affirmed that each deputy was inviolable against ‘la puissance des baïonnettes’ of the King. All post 1789 European nations established in Europe, along with the parliaments constituted in their colonies also provided for parliamentary inviolability for the members, whereas British colonies provided only immunity of freedom of speech for the members of those assemblies. Of course today, citizens of most countries need no longer worry about ‘la puissance des baïonnettes’ of a king, making parliamentary inviolability, elitist.

By providing for immunity only in their new constitutions and not inviolability, these Arab Spring nations may go a long way to show that their republics mean business about a more equal society. In so doing that may render a more satisfied citizenry, even good governance, yield peace incrementally and, set an example for the European Parliament.

Joseph Maingot is the author of Parliamentary Privilege in Canada, 2ed 1997, and, with David Dehler, of Politicians Above The Law, a case for the abolition of parliamentary inviolability (2011).
He has advised on parliamentary matters in Canada and in Yemen, the Kyrgyz Republic and East Timor.

Ottawa, Canada.