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Debate: Immunity from prosecution for politicians

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Should heads of state or members of Parliament/Congress enjoy immunity from prosecution?

Background and context

In many systems, some sort of immunity from prosecution is provided to elected leaders, either for life or during their time in office. This may only be connected to matters directly related to office, or it may be for any prosecution. In France, for example, presidential office carries with it immunity from all prosecution while the President remains in office. In the U.K. and elsewhere, parliamentary immunity operates so that Members of Parliament cannot be sued for libel for what they say in Parliament. A contrast is provided between the situation in France and America. In the former, President Chirac has claimed Presidential immunity to avoid prosecution on corruption allegations (dating from his time as Mayor Paris in the 1980s), while in the USA President Clinton faced a prolonged court case over accusations of sexual misconduct while Governor of Arkansas, as well as an impeachment attempt in Congress.[1]

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Justice: Is immunity from prosecution for politicians consistent with the need to uphold justice?

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Yes

Immunity is definite, and holds politicians accountable for their offenses and crimes after office: Immunity would only be for the period while a politician is in office. After serving office, wrong doing would be fully prosecuted, accountability maintained, and justice served.[2]

The fame and occupation of politicians may make it impossible for them to obtain a fair and objective trial: In any well-developed legal system it will be expected that an accused would receive a fair trial in which they are judged fairly and impartially. This may well not happen where that accused holds public office. Politicians are likely to be well-known and so perhaps split opinion, making it hard to achieve a fair trial. And their involvement in the executive or legislative branches of government will perhaps have brought them into conflict with the judicial branch, and so it might be expected that judges would also be hard placed to treat them objectively.[3]

Attempts to prosecute senior politicians are very frequently cheap attempts to score political points against them: It is often the case that opposition parties and other opponents of the government will focus their resources on trying to destabilise the government or its senior figures. Involving them in legal action may serve to do this as prosecutions are destabilising even if the accusations are groundless or very unlikely to succeed in court. This is because the time, expense, energy and strain involved in the legal action may well serve to undermine the effectiveness and credibility of the person being accused. Therefore it is important that the many frivolous suits which would otherwise be brought as political stunts are stopped, at least while the person remains in public office.[4]

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No

Politicians are not above the law: In a democracy, no one is above the law. Immunity gives this impression, even if it is only for the period in office.[5]

Prosecutions need to be carried out at the time that the charges are leveled due to evidence collection: Justice can only be truly excercised through a speedy process. Such a process ensures that evidence is fresh. Witnesses, for example, should not be expected to recall important factual details that may implicate a politician, five or ten years down the line. Similarly, evidence such as emails or paperwork need to be collected upon accusation to avoid their intentional or unintentional deletion, destruction, or loss.[6]

Crimes may relate to the office itself, and it is important to prosecute crimes for the purpose of upholding accountability: Many complaints against public figures are grave. They may well be related to the nature of the way in which that person fulfils his public office. For example, the action may be about holding someone to account or encouraging a fuller public insight into something in which the government has been involved. In many cases these may be things which it is important to have publicized and for the relevant people to be held accountable, in the interests of good and also open government. Giving politicians power without accompanying responsibility and accountability will actively encourage abuse of power, because the person will know that he is effectively unaccountable for his actions at law.[7]

With immunity, politicians may be accused unfairly and without the ability to clear their name in trial: Even (perhaps especially) in systems with immunity, whispers about a person’s behaviour will hang over him and will have a damaging effect. Immunity serves against a politician's interests because it means that they cannot publicly clear their name. Therefore they will be pursued by possibly unsubstantiated accusations. When these are not fully and transparently demonstrated to be false in court, they will fester and eat away at their public reputation over a long period of time.[8]


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Office effectiveness: Does immunity undermine the dignity and effectiveness of political office and slow democracy? Or do prosecutions do this?

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Yes

Prosecution of a senior politician or parliamentarian damages the dignity of office and functions of democracy: It is important that politicians are not scared to speak out, for example to encourage free and open parliamentary debate and so encourage optimal law-making. Involvement in the legal system, especially the criminal justice system or in cases where there is some hint of moral wrongdoing, creates an explicit link between the politicians and a mode of behaviour which is not exemplary. This is deeply damaging to the public respect for high office, even where the person may have in fact done wrong. This is one reason why, for example, absolute monarchs tend to sit above the law. Even where the accusation may have some basis, it is better for the dignity of the office to ignore individual wrongdoing and retain the facade of the role.[9]

Immunity allows the politician to remain focused on serving his office effectively: We have seen above how such a distraction might work. This is seen as desirable because the role of the elected politician is to serve the interests of his or her constituents widely. The best way to hold politicians accountable is to let the electorate decide. In a free society with media scrutiny voters can judge politicians at elections and choose whether to support them or not, taking into account all that is known about their past actions and indiscretions. For example, it is hard to argue that either the French or the American people believed that Presidents Chirac and Clinton respectively were fine moral examples, yet they chose to re-elect each in a statement of support for their leadership and policies.[10]


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No

Involvement in legal action does not damage the dignity of office: First, there is the question of whether public office carries with it any inherent dignity other than that of its current bearer. Even if one accepts that it does, it doesn't make sense to say that stopping that person from rebutting accusations in law will enhance or protect the dignity of the office. If anything, it seems likely to bring it into some sort of disrepute. It sets up something of a double standard whereby the bearer of the public office in question is expected to be denied the dignity other people would have in being able to clear their name.[11]

Immunity from prosecution would encourage cowardly politics: By allowing politicians to take refuge behind immunity, the system encourages them not to censor themselves and so air their prejudices, half-baked ideas or unfounded allegations. This is lazy and not conducive to statesmanlike, quality government.[12]

Immunity while in office encourages incumbents to try to hang onto office when it might be better for them to leave: Where a politician knows that their immunity ends when they leaves office, they have an incentive to hang onto office for as long as possible and so avoid prosecution. This can be damaging to the democratic process as well as to the office. For example, it makes it more likely that politicians will try to hang on to office long after they should have retired as old age starts to reduce their energy and judgement. Worse, it can lead to attempts to change constitutions to allow further terms in office, or to rig elections, and harass and undermine political opponents, etc. This problem would not arise where there was no difference in the ability to be prosecuted of the individual whether he was still in office or had already left it.[13]

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Incentives: Does immunity from prosecution incentivize politicians to break the law?

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Yes

  • Immunity actually encourages politicians to break the law.

If politicians should be immune from prosecution, they would use it as an excuse of such to break they law and get what they want. Of course politicians would use this excuse and it is silly to make politicians different to anyone else regarding the law.


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No

  • Politicians are elected as responsible people.

Politicians are people who are role models and represent people. They are responsible people with a good criminal record and people can trust them - otherwise they wouldn't be voted in. Politicians would not break the law and it is silly to think they would. Immunity from prosecution will not mean they decide to start commiting crimes.

  • Politicians would not break the law from fear.

The media constantly is watching over politicians. These people would be named, shamed and humiliated by the media if they were to do something that may have them charged if they weren't immune from prosecution. Also, politicians want to be re-elected. People won't vote for them if they have gained a criminal record and politicians don't want this to happen and wouldn't break the law anyway.

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