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11. Preserving Immunity through Reelection
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Chapter 11 Preserving Immunity through Reelection In most countries, members of representative assemblies enjoy immunity , a “grant of exception from certain civil and criminal penalties accorded to parliamentarians for the duration of their service in the chamber , and sometimes beyond their service, in order to ensure their freedom to perform their duties as representatives” (Kurian 1998, 5). Some assembly members—most likely those involved in unlawful activities— may be interested in reelection to retain immunity or in initial election to gain immunity. This particularly may be the case in countries where the grant of exception is broad and guarantees that representatives will in most cases remain free from prosecution, despite the gravity of the misdeeds they may commit. Representatives may want this immunity to prevent arrest or to ensure that they will be able to continue to commit illegal acts with impunity. In 1997 the Honduran Catholic Church criticized the “sale” of congressional candidacies to persons wishing to avoid prosecution for criminal acts, indebtedness, corruption, or even to escape responsibility for alimony payments. “The assignment of candidacies in exchange for money is a proven and reproachable fact,” said an editorial in the church’s official newspaper.1 Between 1984 and 2004 Panamanian legislators instituted and expanded broad immunity provisions that ensured that most wrongdoing by assembly members would be free from prosecution. These provisions 236 guaranteed their freedom from asset seizures in civil cases from the moment of their election to the end of the mandate and their freedom from arrest in criminal cases from five days before the start of ordinary and extraordinary sessions to five days after the close of the sittings. Additionally , immunity stipulations required the plenum’s authorization to initiate investigations against, and prosecute, any member. The 2004 constitutional reform eliminated deputies’ inviolability in criminal cases and the requirement of assembly authorization to investigate and prosecute members. Responsibility for investigating, prosecuting, and trying members was vested in the Supreme Court. This reform, however, has failed to guarantee deputies’ equal treatment under the law. Evidence from Panama—especially in 1984–2004, when the broader immunity provisions were in place—indicates that some assembly members were eager to retain and exercise their freedom from justice.This was particularly the case for members implicated in illegal acts, especially corrupt activities (but also more serious criminal actions). Immunity is thus intimately linked to illegal personal enrichment as a major incentive for seeking office or ensuring reelection. In 1984–2004 extensions of immunity gained easy approval by the chamber with the support of members from all political parties, in addition to, as we might expect, those legislators publicly involved in wrongdoing. Beneficiaries of “legislative” immunity also gained election to leadership positions in the assembly. Yet another compelling proof that the majority of the chamber values this privilege is that in 1984–2004 immunity was lifted only twice and, on both occasions, only as a result of strong outside pressure on the chamber . These developments relate to the general climate of impunity that prevails in Panama, which prevents the prosecution and punishment of politically influential offenders. Representatives’ Immunity in Comparative Perspective Parliamentary immunity originally rose in pre-democratic times as a safety measure against the obstacles that powerful political actors, notably the executive, could place on the activity of representative assemblies (Moscote 1943, 240).2 Its purpose is to prevent politically motivated legal Preserving Immunity through Reelection | 237 [54.91.19.62] Project MUSE (2024-03-29 07:03 GMT) actions against members that would render them unable to fulfill their representative duties and thus would violate the will of the electorate as well as the idea of democratic representation. This tradition, therefore, is a remnant from a pre-democratic past. It makes sense to retain such traditions when their existence contributes to strengthening and broadening the scope of liberal democracy. But when they weaken important dimensions of the democratic regime, such as the rule of law or legal equality, their endurance warrants close scrutiny. Non-Liability Non-liability and inviolability are the two basic types of immunity granted to representatives. Non-liability (also called non-accountability) allows members to express their opinions and exercise their mandates freely without facing suits for declarations or votes emitted as part of their official functions (Kurian 1998, 6). Within the sample of 51 liberal democracies that by the end of 2008 had responded to the InterParliamentary Union (IPU) survey on the subject, all recognized the nonliability of representatives (see appendix S...