Wednesday, March 17, 2010

The 'get out of jail free' card

One typical component of constitutions is the immunity afforded to public officials.  Its purpose is to ensure stability in the act of government by removing the potential distraction of legal proceedings.

Such immunity varies widely from one country to another in terms of its coverage.  In some jurisdictions it applies very widely, for example to all Members of Parliament and Ministers in the Government.  In others it can be more limited, in the extreme applying just to the President.

Immunity can also vary in its scope.  In it's most limited form the public official is still legally responsible for acts committed during his/her term in office, but any court cases are delayed to the end of the term.  In the most expansive form officials are excused from responsibility for criminal acts committed while in office and from prosecution for previously committed acts.  In many jurisdictions there are provisions for immunity to be lifted by Parliament, however this usually requires a super-majority and is rarely applied.

Systems of immunity in Eastern Europe are usually broad in their scope and expansive in their coverage.  Such systems encourage those (allegedly!) guilty of serious crimes, such as Russia's Andrei Lugovoi, to seek refuge in Parliament rather than openly face accusations at trial.

Under a new constitution, Moldova has a chance to get immunity right.  My view is that it only needs to be afforded to a select group of people (basically the three highest office holders - President, Prime Minister & Speaker).  If a minister or a deputy goes to trial, it does not seriously undermine the act of government, and these officials need to be subject to the same laws as anyone else.  Furthermore, the immunity offered should just be in the nature of a deferral of the judicial process until the function is no longer occupied.  Crimes committed must be answered for at some stage, even if committed before or during a period of immunity.

This is important.  Communist deputies and ministers who committed crimes during their 2000 - 2008 rule must answer for them, and the current AIE authorities must be held to the same standards during their term in office.

Worse, if the immunity provisions are left as in the current constitution, then we'll end up with a parliament of crooks and a government of mafiosos, all seeking to avoid justice and waving their 'get out of jail free' cards at the long-suffering citizen.

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