immunity protections for high-level public officials public accountability mechanisms (pam)...
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IMMUNITY PROTECTIONSFOR HIGH-LEVEL PUBLIC OFFICIALS
Public Accountability Mechanisms (PAM) Initiative
By Stephanie E. Trapnell and Ayompe AyompeJune 12, 2013
THE WORLD BANK
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Outline
Public Accountability Mechanisms De jure (in law) measurement De facto (in practice) measurement
Immunity protections data Findings of in law assessments Conclusions
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The PAM Initiative brings forward detailed and regularly updated data on efforts to enhance the transparency and accountability systems in a sample of 90 countries worldwide.
http://www.agidata.org/pam
Public Accountability Mechanisms
Public Accountability Mechanisms (PAM)de jure data
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Financial disclosure (interests, assets,
income)217 indicators
2008, 2012
Freedom of information
36 indicators2010
Conflict of interest restrictions
128 indicators2012
Immunity protections56 indicators
2013
Outputs of de jure data5
Data, including qualitative and quantitative datasets, country profiles, and descriptive statistics
Analytical publications Library of laws Country reports on enabling governance
environment (development since Fall 2012)
All data and materials are available online to both internal and external users
Publications6
Design of public accountability mechanisms Public Office, Private Interests: Accountability
through Income and Asset Disclosure Income and Asset Disclosure: Country Illustrations
(forthcoming) Financial Disclosure Systems: Declarations of Interests, Income
and Assets Freedom of Information Systems: Access, Rights, Openness Conflicts of Interest: Restrictions and Disclosure
Implementation of public accountability mechanisms Financial Disclosure Systems: Roadmap for Implementation
/ Performance Assessment Freedom of Information Systems: Roadmap for Implementation
/ Performance Assessment
Primers on design and implementation
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De facto data collection efforts
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Development of indicators 12 case studies on financial disclosure systems Review of measurement practices in transparency
initiatives Refinement of indicators
Online survey targeting government officials in key positions in financial disclosure systems
Freedom of information indicators presented at international conferences
Summer 2013: Proposed scale-up Local consultants conduct on-site interviews with
government officials, upload data with new online platform, Indaba
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Challenges of collecting data on Immunity protections
Legal terminology Informal approaches to immunity Many provisions require legal
interpretation within specific cases/contexts.
Comparability of data across countries when case law impacts applicability
Different approaches are not the same: revocation vs. impeachment
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Legal FrameworksPublic Accountability Mechanisms, 2013http://www.agidata.org/pam
Immunity Protections in-law data
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What is an Immunity Protection?
Immunity protections (IM) refer to a situation in which public officials are legally protected from prosecution for duties performed in the capacity of the state.
The operating principle of the legal framework of immunity protections is intended to strike a balance between two important interests: the protection of public officials from intimidation
or attack for actions that occur in the course of their duties
the protection of citizens from corruption and the abuse of public office for private gain.
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Head of State Ministers/Cabinet Members Members of parliament
Coverage: High-level public officials
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Coverage of high-level public officials
The data collected on the legal frameworks of immunity protection for high-level of public officials highlight the widespread use of guaranteed immunity protections in nearly all countries of study. The figure highlights a consistent pattern across countries of different income levels: that Members of parliament enjoy immunities far more often than members of the executive branch.
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Legislation vs Constitutional protections
Immunity protections appeared to be more clearly specified in internal legislation of a particular governing body (parliament) than in constitutions.
Sweeping or blanket immunity protections that do not distinguish between civil and criminal protections are often present in constitutional laws.
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Non-liability immunity often refers to proceedings concerning votes cast or opinions expressed during officials’ term or mandate in office.
Inviolability refers to protection from arrest, search, investigation, detention, criminal prosecution including being brought before the courts in case of offences committed without the permission of a specified authority.
Type and Scope of immunity protections
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Distinguishing between the scope of protection
afforded to public officialsAbsolute immunity operates as a complete bar to relief, regardless of whether the act falls within or out of official functions or the official's motive for performing official duties
Qualified immunity protects public officials from being sued for damages unless they violated “clearly established” law.
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Immunities for Head of State
Criminal protections are more likely than protection from civil liability, and particularly so in higher income country brackets. The disparity between non-liability (civil) and inviolability (criminal) guarantees for heads of state is most striking as GNI per capita rises.
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Immunities for Members of Parliament
MPs enjoy both types of immunity at similar coverage more than members of executive branch. The data for lower income classifications signifies the presence of sweeping or blanket immunity laws that do not distinguish between civil and criminal protections.
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When immunity protections do not apply…. Exceptions to immunity laws should
apply in specific circumstances and be well-specified. For conduct making officials liable in civil
lawsuits, e.g., defamations, slander, intended wrongful acts.
When officials are caught in the act of committing a criminal offense, i.e., in flagrante delicto
For serious violations of criminal law that prevent immunity protections from applying in the first place
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Exemptions to immunity protections when caught in the
act of committing a crime
Across all income classifications, exemptions to immunity protections in cases when caught in the act of committing a crime, appeared to be more clearly specified in law for MPs than Head of state.
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Immunity protections do not apply in the first place for serious
crimes
Contrary to the data in flagrante delicto, across all income classifications, cases where immunity protections do not apply at all (i.e. felony, serious offense against the state), appeared to be more clearly specified in law for Head of state than MPs.
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Immunity protections should only apply while public officials are in office.
Limited Duration of Immunity Protections
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Limited duration of immunity
No more than 70% of countries in the sample specify clear durations by law even in the higher income classifications.
Unclear specification allows room for interpretation of the law that may compromise the intent of balancing protection of officials with protection of citizens through clear legal doctrine
25Revocation of immunity vs.
impeachment
Revocation of immunity or impeachment are measures to prevent public officials from benefitting from immunity protections.
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Revocation of immunity vs. impeachment
Revocation of immunity refers to the situation where the immunity protections accorded to public officials are lifted in specific circumstances to allow for a public trial as an ordinary individual for alleged offences committed
Impeachment of public officials is the act (usually by legislature) of calling for the removal from office of a public official, accomplished by presenting a written charge of the official’s alleged misconduct.
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Coordination requirements for revocation of immunity
The figure highlights the propensity for higher income countries to require coordination between more than one authority for revocation to occur.
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Conclusions
Public officials’ non-liability protections are not intended to bar the right of individuals to seek redress; governments may be held liable for these actions, depending on the legal context.
Qualified immunity, with clearly established protections and conduct, is preferable to absolute immunity.
Separate legislation/regulations are a more effective vehicle for immunity protections, as these laws can be changed more easily than constitutional law.
Revocation of immunity and impeachment are intended to serve different purposes; they should not be considered similar approaches to sanctioning officials.
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For more information please contact:Stephanie E. Trapnell, [email protected] Ayompe, [email protected]
Thank you!
IM findings are based on research and analysis performed by Aisuluu Aitbaeva, Ayompe Ayompe, Daniel W. Barnes, Afroza Chowdhury, Gary J. Reid, Joel Singerman, and Stephanie E. Trapnell.