Rational Parliamentary Immunity

The subject of immunity always comes up ahead of parliamentary elections in countries all over the world, and in Egypt, like elsewhere, the question of parliamentary immunity attracts attention, especially since immunity had a lustre and glitter that affected the shape of elections in Egypt during the era before the 30 June Revolution.

Parliamentary immunity is a constitutional principle established in favour of the parliament representing the nation, to guarantee its independence in its work and to protect its members in their capacity (not in their persons), giving them full confidence to enrich parliamentary work and to perform their duty in complete freedom, without any resulting criminal or civil liability.

The idea of immunity originated in the Bill of Rights in England in the 17th century, and passed to France, which adopted it in 1789 under the name (inviolability), and extended to the United States and the constitutions of the various countries of the world as a guarantee of the proper functioning of parliamentary work.

At that time, (the crimes of high treason, felony cases and breach of the peace) were excluded from that immunity, as a member of parliament would be arrested if he committed any of these crimes without his immunity being lifted.

Parliamentary immunity was known in Egypt with the issuance of the Basic Regulation of the Chamber of Deputies in 1882, and continued in most constitutions up to the 2014 Constitution, which established the principle that a member of the House of Representatives is not liable for the opinions he expresses in connection with the performance of his work in the House or its committees, and that, except in cases of flagrante delicto, no criminal proceedings may be taken against any of its members “during the session of the House of Representatives” without the prior permission of the House.

That is, this immunity protects the elected or appointed member of the House of Representatives from the bringing of public prosecution against him because of the opinions and ideas he expresses during his term, even after he has left office and become an ordinary person; it is called immunity from parliamentary liability.

As for immunity from criminal proceedings provided for, it consists in the prohibition of taking any criminal proceedings against any member, except in cases of flagrante delicto, without the prior permission of the parliamentary chamber to which he belongs.

Here the question arises whether immunity gives members legitimacy to commit crimes without accountability during the parliamentary term. What is the member’s liability for crimes he commits against others outside the work of the House if his immunity is not lifted? And what are the effects of this on rights?

We find that the House will not give immunity or a blank cheque to protect members from criminal liability for the crimes they commit, but only requires the House’s approval to proceed with legal proceedings against the member before they are initiated, after making sure that the action or proceeding is not intended to prevent the member from performing his parliamentary responsibilities in the House.

As for the second question, about exempting the member from the penalties prescribed for crimes he commits against others outside the work of the House. Here we distinguish between the case where the member commits an act constituting a misdemeanour, and the case where a judgment of imprisonment or a fine is issued against him for a misdemeanour.

In this hypothetical case, a member who commits an act criminalized by law (contravention – misdemeanour), and whose immunity the House does not agree to lift, there are direct legal and civil effects as follows: in the case of a contravention, it lapses one year from the date it was committed, and a misdemeanour is extinguished after three years from the date it was committed. The deputy will therefore have obtained a protection certificate without right.

And if a judgment is issued against the deputy for a contravention or a misdemeanour, and the House refuses to lift his immunity, the penalty for the contravention lapses after two years, and the penalty for the misdemeanour lapses after five years, which may be the length of the parliamentary term, which reflects negatively on the rights of others.

Hence we present a new conception of (rational) parliamentary immunity, with the aim of being consistent with the state’s policy after the 2013 Revolution and in keeping with the state’s strategies and the international agreements on combating corruption, which consists in following the English model, so that the parliamentarian’s immunity applies inside the House only, and outside it he is treated like any citizen, in order to achieve equality and justice, preserve the rights of others, keep away from narrow personal interests, raise the concept and meaning of serving society and keeping the promises made to voters, lay a new structure for democracy in Egyptian society, and work to improve the citizen’s image of parliamentary elections in our modern Egypt, through a constitutional referendum on this.