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Gregory Tardi

Politicians above the Law: A Case for the Abolition of Parliamentary Inviolability J.P. Joseph Maingot, with David Dehler, Ottawa: Baico Publishing Inc., 2010.

This book deals with a significant topic, of interest to a well-defined, but rather limited audience of specialists. It examines the application of the rule of law, and in some respects the application of the rules of law, to parliamentarians. It also contrasts the treatment in law that parliamentarians receive in countries that apply parliamentary immunity, vis-à-vis those that subscribe to the doctrine of parliamentary inviolability.

The core of the issue is that in order to be able to accomplish their official duties freely and without hindrance, members of all parliaments need a certain degree of exemption from the general law applicable to the population at large. To some degree, this is a reflection of parliamentarians’ need for a margin of professional manoeuvre in their work: within their respective houses, they must have some freedom to state publicly what needs to be said so that the legislative body they belong to can make appropriate decisions. In some measure, this is also a factor of the relationship, including the stresses and strains between the legislative branch of the government and the others, in particular the executive. Legislators ought not to be subject to prosecution by the executive arm of the state for performing their tasks, sometimes in opposition to the executive’s policies. Legislators also need some other ancillary freedoms, in particular ones that relate to the legislature having first call on their professional time.

The real question treated here is the extent of the necessary exemption. Generally speaking, Maingot classifies all countries of the world into two groups: those of the English speaking genre, namely the Commonwealth and the United States in one category, and the rest of the world in the other. The Anglo countries apply a regime of parliamentary immunity, in which the exemption granted to parliamentarians is limited. The rest of the world has adopted a much broader set of exemptions, namely parliamentary inviolability. This book reasons that this latter type of regime is too broad and is unjustifiable in a modern, democratic context. Maingot has a point and, despite the respect that should be accorded to a former Law Clerk of the House of Commons of Canada, it must be said that he could have presented his argument more strongly.

It is questionable why the author chose to lump all non-Anglo countries into a single category. When he combines all countries that adhere to the doctrine of parliamentary inviolability, he effectively lumps into a single bunch countries of the Civil Law tradition, those of the Latin American variant of Civil Law, those of Arabic and Sharia Law, traditional-customary legal systems, East Asian legal systems, as well as the recent heirs to Socialist legal systems, Within this enormous range, there are many diverse histories which should, perhaps, not all have been subsumed into the phrase drawn from the French Revolution, in which ”la puissance des baïllonettes” is indicated as the preferred tool of the executive against what they perceive as recalcitrant legislators. In this sense, a more limited book, dealing with European and North American parliamentary systems might have been more convincing.

Another set of arguments might also have rendered this book more effective. Having chosen to encompass the world, in arguing against parliamentary inviolability, Maingot could have set out the various scenarios possible more systematically and in greater detail. These could have been mapped out as follows:

  • Prosecution before entering Parliament:

- in respect of acts committed before entering Parliament.

  • Prosecution during the mandate of a parliamentarian:

- in respect of acts committed before entering Parliament;

- in respect of acts committed during the mandate of the parliamentarian;

- for actions within the parliamentarian’s mandate;

- for actions outside the parliamentarian’s mandate;

  • Prosecutions after the end of a parliamentarian’s mandate:

- in respect of acts committed before entering Parliament;

- in respect of acts committed during the mandate of the parliamentarian;

- for actions within the parliamentarian’s mandate;

- for actions outside the parliamentarian’s mandate;

- in respect of acts committed after the end of the parliamentarian’s mandate.

Different rules could be applied to the various scenarios listed, probably with the exception of the very last one. Moreover, the book could have benefited from elaboration of the alternative to prosecution by the executive in the general judicial system, namely trial within Parliament.

While it is easy for the armchair critic to dissect Maingot’s approach to his thesis, it would be rather obtuse to contradict his fundamental point. From the perspective of a citizen used to the Canadian political system, including the Westminster model of parliamentary privilege which entails specifically more limited parliamentary immunity, it is quite true that the offer of blanket inviolability to parliamentarians upon accession to a legislative body seems incongruous. There are several lines of reasoning in support of this proposition.

Maingot alludes several times to the now protracted Berlusconi Affair. He also mentions in passing the prosecution of former French Prime Minister Alain Juppé. The first of these in particular, grounded as it is in the concept of inviolability, is a shameful blight on Italian political life and even more on democracy itself. This is the rarest of cases, in which the blatant machinations and obvious subterfuges reverse, in the public’s mind, the onus of innocence without proof of guilt in both law and politics. Maingot also refers to the phenomenon of criminals getting elected in some countries, specifically in order to avoid prosecution. He is quite right in considering this a distortion of democracy.

One very significant omission in this book, which would have strengthened Maingot’s case against the impunity of public officials, is the most striking recent parallel between developments in the law regarding accountability in the legislative and executive branches. There is a general trend in the law of democratic governing in favour of accountability, to the detriment of impunity. Let us acknowledge, however, that the practice may not yet have caught up with the law here. As far as the executive branch is concerned, a fundamental improvement was brought about by the Rome Statute establishing the International Criminal Court, adopted in 1998. Article 27 of that instrument provides that no government official, not even a head of state or government, shall be exempt from criminal liability based on his or her official capacity. While transplanting the principle of this text from the executive to the legislative may be an immensely difficult task, Article 27 could serve as a model for the evolution of the responsabilization of parliamentarians in the countries that subscribe to the notion of inviolability.

This reviewer feels the need to add a note about the twin issues of the technical quality of this book and its publishing. Baico Publishing Inc. is, in essence, a well-meaning but unknown publisher, that the author must have had resort to in the absence of having had this project accepted by a more mainstream and well-established publishing house. This is reflected in the unevenness of the editing, some faulty and inconsistent citations and the occasional spelling mistake or printing problem. It stands to reason that Baico could have done some final revision work. What is far more significant, however, is that if the reviewer’s assumption about the choice of publisher is correct, it is high time Canada’s senior publishing houses revise their acquisition policy. Whether one agrees with Maingot’s thesis or his conclusions, this is a book on a topic worthy of serious note. If it is not a commercially viable project, that is because its rejection by publishers with specialized staff and country-wide marketing reach make its lack of public interest and publicity a self-fulfilling prophecy. Books are inherent intellectual benefits, not mere commodity-like products. It is time the publishing mega-conglomerates include books that are worthwhile for society among their titles, however short their print run and however thin their margin of profit.

The next edition of this book, as the interest of the subject matter demands that there be one, should be improved.

Gregory Tardi
Executive Editor
Journal of Parliamentary and Political Law

Canadian Parliamentary Review Cover
Vol 34 no 2

Last Updated: 2020-09-14