People’s deputies have been returning to this issue for many years, it is traditionally included in the list of election promises, and with the same ease, each time runs the risk of remaining outside the interests of MPs. Elimination of parliamentary immunity is a topic that once again finds itself in the spotlight. Opinion found out how much such a step is needed, whether we should expect pressure and manipulation in case of deprivation of deputies’ life-long protection, what is discussed in the parliamentary and presidential bills, and whether parliamentarians will be able to avoid voting.
Taking parliamentary privilege – a necessary step or PR-stunt?
Reflecting on this issue, Bohdan Petrenko, reserve director of the Ukrainian Institute for the Study of Extremism, explained Opinion, that in the event of the abolition of the parliamentary privilege of the MPs, we can eventually obtain a fully-controlled Verkhovna Rada. Therefore, now the life-long protection of the deputies is rather an instrument of the check-and-balance system.
“Parliamentary immunity is the protection of an MP from persecution for political purposes. If we completely abolish the life-long protection of deputies, then we will have a fully controlled Verkhovna Rada. And this problem will continue until an independent judiciary is formed. Therefore, a parliament without parliamentary privilege will be fully controlled by those, who control the justice and law enforcement agencies. In fact, parliamentary privilege is an instrument of the check-and-balance system in the system of separation of powers,” the specialist considers.
Petrenko also stressed: the more important thing is not the mere fact of taking the privilege, but bringing deputies to respond after the taking of the mandate. At the moment, the process of lifting the immunity, according to the expert, looks more like a PR campaign for the prosecutor’s office and the authorities, or even for individual political projects.
“The biggest problem is not that the deputies have immunity, but in bringing them to justice after taking away their mandate. And the experience of the last ‘taken immunities’ proves that bringing to responsibility is even a bigger problem. It seems as if after the constitution of their powers in connection with the election of a new Council, the majority of deputies immediately go to prison. Because supposedly their super-immunity was over, and they became responsible for their crimes committed during the deputy’s activities. Therefore, stripping of the immunity is more like a PR-stunt for the prosecutor’s office, authorities, entire political projects, and not means to address the real problem of prosecution of the guilty,” Bohdan Petrenko stated.
Is the stripping of the immunity will really put pressure on deputies?
Is the stripping of the immunity will really put pressure on deputies?
Maryna Bahrova, a member of the board of the international union “Institute of National Policy” is convinced: if a deputy is really elected by the people and is legitimate, no structures, including the president, administration or others, will be able to illegally remove him from power. We shouldn’t forget: the MP has only one employer – his voters.
“Regarding Ukraine, where, unfortunately, the false form of the party-oligarchic system was formed, deputies often become those who, instead of creating the necessary laws for the benefit of their voters, want to earn unfair earnings in a deputy’s position, while using parliamentary powers, for lobbying financial, often illegal (corrupt) interests. In addition, such people, officially acting as a deputy, depend on certain oligarchs than on their voters.
Therefore, such deputies serve not the people, but those who brought them to power, while still deceiving voters. For such people, parliamentary privilege is necessary for personal protection from the law and the people, in case of violation of their laws, as well as the rights and freedoms of citizens.
I would like to dispel the myth, that the abolition of parliamentary immunity will put pressure on deputies on the part of the president and his administration, as well as from other power structures. If a deputy is actually elected by the people, he is legitimate, and then no president and no administration will be able to illegally remove him from power.
In the case of attempts to render any unlawful pressure on a deputy, as well as a deputy candidate, on the part of the authorities, the deputy, using his legitimacy, appeals to his voters with evidence of unlawful interference in his activities and requests protection from his electorate. When voters get evidence of unlawful interference with the activities of their deputy, as they say, take the situation under public control. In such a situation, the pressure of an official on the deputy will contribute not only to raising his rating, but also to confirm his legitimacy, and at the same time seriously discredits the very authority. After all, a deputy has got the one and only employer – his voters “, explains the expert.
Maryna Bahrova also noted that there is a need to specify the reasons for the recall of a deputy in details. This practice, for example, works in many civilized countries. This may further discipline the electorate and increase responsibility towards his employer. In general, the abolition of privilege, according to Bahrova, will bring us closer to the formation of the genuine democratic rule.
“In addition, it is necessary to legislatively establish a procedure for recalling a people’s deputy for various violations of the Rules of Procedure of the Verkhovna Rada, the legislation of Ukraine and the elemental failure to fulfill their parliamentary duties, or promises to voters. The law on the status of a deputy must detail the reasons for the withdrawal. By the way, in many civilized countries, there has long been a procedure for the recall of deputies, which over the years of political practice has repeatedly proved its effectiveness. The presence in the law of the recall procedure, discipline the deputy, forces him to be more responsive to his voters.
In general, the complete abolition of parliamentary immunity and the introduction of the procedure for recalling a deputy will in the future lead to a significant change in the parliamentary composition of the Verkhovna Rada and will ensure a genuine political and legal relationship between the deputy and his voters, that is, will bring all of us closer to the establishment of a genuine democratic board,” is said in the comment for Opinion.
Parliamentary and presidential bills – what can eventually work?
Political expert Oleh Petrovets explains: the draft law, initiated by Petro Poroshenko, has one significant difference from the document registered by parliamentarians – it can grant MPs the immunity only after the next convocation since it will only come into force from 2020. The expert believes that the presidential version of the law will be successful because parliamentarians are unlikely to be interested in voting for the taking of their immunity in general. However, choosing among the two options, deputies will prefer to gain some time for a while.
“The initiative №6,773 was registered by the Verkhovna Rada of Ukraine on 19 July 2017. It is noteworthy that more than 150 people put their signatures under the text of the bill! The essence of the document is to remove from the Constitution of Ukraine parts 1 and 3 of Article 80, which, in fact, establishes the institution of parliamentary privilege. Another bill №7203 dated October 17, 2017, is an initiative of the president and actually repeats the essence of the previous one. But with one small condition – it can only make the deputies of the next convocation protected since it will come into force only in 2020.
As for me, the real chances to be voted for has the presidential proposal, because if to be realistic, it is clear – there is no interest of parliamentarians to vote for the abolition of their own privilege. However, if you have to choose ‘between the bad and the worse’, it is clear that there will be an attempt to secure legal right here and right now, or at least win for some time,” a political expert explained in the commentary for Opinion.
However, not everything is so simple. Oleh Petrovets draws attention to the fact that in the legal and political theory of the concept of parliamentary privilege it consists of two parts – the indemnity and immunity. The following is even more interesting because both parliamentary and presidential bills provide for partial deprivation of privilege, but only partial. That is, the indemnity (absence of legal responsibility and statements and votes) is proposed to be left unchanged.
“But, if we consider the proposals from the bills, then it turns out, that no one is going to take away the privilege from the people’s deputies. The fact is that in the legal and political theory of the notion of parliamentary privilege consists of two conditional parts – the parliamentary indemnity and parliamentary immunity. The first means that a member of parliament is not legally responsible for his statements and voting. In its turn, the meaning of parliamentary immunity lies in the fact that a member of parliament, who is suspected of committing a crime, cannot be brought to legal liability without the permission of the parliament. So, both of the aforementioned bills envisage incomplete deprivation of impartiality, but only partial. Part 2 of Article 80 of the Constitution, which establishes the so-called indemnity, is proposed to be left unchanged. Thus, no matter how the situation in the parliament develops, and no matter how it ends, the deputies will not continue to bear legal responsibility for the results of the vote or statements in the Verkhovna Rada and its bodies, except for the responsibility for the offense or slander.
And, actually, the abolition of the privilege in terms of prosecution should go in favor of corrupt Ukraine, since the impossibility of defending its business interests by deputies under the guise of the privilege will “purge” the parliament from businessmen and in theory will free up the path to a great policy for truly professional people. Well, to leave the privilege at least partly, it is a rational decision for Ukraine, because, on the one hand, the Venice Commission in its conclusion from 2015, and the Constitutional Court, on the other, in its conclusions today warn: under conditions of underdeveloped democratic institutions in the country, the cancellation of parliamentary privilege can be used for political persecution and pressure on opponents, which leads to the establishment of authoritarianism “, the expert thinks.
A deputy position is a privilege or public responsibility?
Inna Bohoslovska, a state and public figure, ex-MP from “the Party of Regions” (left the faction and the party’s ranks in November 2013), believes that the person holding the post of a deputy must comply with the law in respect of the committed criminal offenses, as well as any other citizen of the country. However, according to Bohoslovska, modern process of removal of the privilege is full of bureaucratic procedures, which gives a large number of opportunities for sabotage.
“The current guarantee of parliamentary privilege, stated in the 80th part of the Constitution consists of 2 parts – political and criminal. In the first case, deputies are not responsible for voting, proclaiming opinions and views while performing their professional duties. And I consider this to be quite justified. However, the second part of this norm concerning the responsibility for criminal offenses in our country has long become a state guarantee of the unpunished stealing from the Ukrainian people. I am sure, that the position of a deputy is not a privilege, but a serious public responsibility. And the person who embraces this post must be responsible to the law for the committed criminal offenses, as well as any other person in Ukraine.
The current scheme of removal of parliamentary privilege consists of bureaucratic procedures, which can be sabotaged with no problems. For example, by simply avoiding studying the protocols. The proceedings of the case are rather long, during which time suspects can easily provide legal justification or escape from the country. Therefore, out of 17 deputies, deprived of parliamentary immunity during the years of independence, the part could easily avoid responsibility, and some even sue Ukraine in the European Court and at this time continue to work without problems in the Verkhovna Rada”, Bohoslovska commented for Opinion.
Will MPs be able to avoid voting for cancellation of the privilege?
Oleh Petrovets emphasizes: there are at least two reasons why MPs will not vote for the removal of the privilege. One of them is a public inquiry and an approach to elections, a period when voting will be taken as a lie and will reduce the chances of success.
“To avoid voting for the abolition of immunity in today’s Ukraine will not succeed for two reasons: well, firstly, it’s not a secret, that some parliamentarians use this institute as not quite a legitimate business instrument, and these facts become known from time to time. Therefore, it is clear that society does not like this state of affairs at all. Secondly, once again, the public request is enormous, and the respective promises of politicians were proclaimed almost before every election, and sometimes also at local levels. So, on the eve of the parliamentary and presidential elections, non-voting for the taking of privilege will be considered as another political lie, which will significantly reduce the chances of a current MPs for political revenge,” Petrenko explained.
By Dmytro Zhuravel