Immunity from Prosecution for Politicians

Last updated: March 7, 2017

Should serving heads of state or members of Parliament/Congress enjoy immunity from some or all prosecution during their office?

Immunity from Prosecution for Politicians
Yes because...

Attempts to prosecute senior politicians are cheap, politicised attempts to score goals against them...

Attempts to prosecute senior politicians are cheap, politicised attempts to score goals against them. It is often the case that opposition parties and other opponents of the government will focus their resources on trying to destabilise the government or its senior figures. Involving them in legal action may serve to do this as prosecutions are destabilising even if the accusations are groundless or very unlikely to succeed in court. This is because the time, expense, energy and strain involved in the legal action may well serve to undermine the effectiveness and credibility of the person being accused. Therefore it is important that the many frivolous suits which would otherwise be brought as political stunts are stopped, at least while the person remains in public office.
No because...
The need to prosecute is often very serious and stems from the office itself. Many complaints against public figures are grave. They may well be related to the nature of the way in which that person fulfils his public office. For example, the action may be about holding someone to account or encouraging a fuller public insight into something in which the government has been involved. In many cases these may be things which it is important to have publicised and for the relevant people to be held accountable, in the interests of good and also open government. Giving politicians power without accompanying responsibility and accountability will actively encourage abuse of power, because the person will know that he is effectively unaccountable for his actions at law.

Immunity from Prosecution for Politicians
Yes because...

Immunity allows the politician to remain focussed on serving his time in office rather than being di...

Immunity allows the politician to remain focussed on serving his time in office rather than being distracted. We have seen above how such a distraction might work. This is seen as desirable because the role of the elected politician is to serve the interests of his or her constituents widely. The best way to hold politicians accountable is to let the electorate decide. In a free society with media scrutiny voters can judge politicians at elections and choose whether to support them or not, taking into account all that is known about their past actions and indiscretions. For example, it is hard to argue that either the French or the American people believed that Presidents Chirac and Clinton respectively were fine moral examples, yet they chose to re-elect each in a statement of support for their leadership and policies.
No because...
Many accusations will cloud the politician’s career unfairly. Even (perhaps especially) in systems with immunity, whispers about a person’s behaviour will hang over him and will have a damaging effect. Immunity serves against a politician's interests because it means that they cannot publicly clear their name. Therefore they will be pursued by possibly unsubstantiated accusations. When these are not fully and transparently demonstrated to be false in court, they will fester and eat away at their public reputation over a long period of time.

Immunity from Prosecution for Politicians
Yes because...

Prosecution of a senior politician or parliamentarian damages the dignity of office. It is importan...

Prosecution of a senior politician or parliamentarian damages the dignity of office. It is important that politicians are not scared to speak out, for example to encourage free and open parliamentary debate and so encourage optimal law-making. Involvement in the legal system, especially the criminal justice system or in cases where there is some hint of moral wrongdoing, creates an explicit link between the politicians and a mode of behaviour which is not exemplary. This is deeply damaging to the public respect for high office, even where the person may have in fact done wrong. This is one reason why, for example, absolute monarchs tend to sit above the law. Even where the accusation may have some basis, it is better for the dignity of the office to ignore individual wrongdoing and retain the façade of the role.
No because...
Involvement in legal action does not damage the dignity of office. First there is the question of whether public office carries with it any inherent dignity other than that of its current bearer. Even if one accepts that it does, it doesn't make sense to say that stopping that person from rebutting accusations in law will enhance or protect the dignity of the office. If anything, it seems likely to bring it into some sort of disrepute. It sets up something of a double standard whereby the bearer of the public office in question is expected to be denied the dignity other people would have in being able to clear their name.

Immunity from Prosecution for Politicians
Yes because...

Political office undermines the important judicial concept of objectivity. In any well-developed le...

Political office undermines the important judicial concept of objectivity. In any well-developed legal system it will be expected that an accused would receive a fair trial in which they are judged fairly and impartially. This may well not happen where that accused holds public office. Politicians are likely to be well-known and so perhaps split opinion, making it hard to achieve a fair trial. And their involvement in the executive or legislative branches of government will perhaps have brought them into conflict with the judicial branch, and so it might be expected that judges would also be hard placed to treat them objectively.
No because...
Immunity from prosecution would encourage cowardly politics. By allowing politicians to take refuge behind immunity, the system encourages them not to censor themselves and so air their prejudices, half-baked ideas or unfounded allegations. This is lazy and not conducive to statesmanlike, quality government.

Immunity from Prosecution for Politicians
Yes because...

Immunity need not serve to allow the person to escape responsibility for his actions altogether. It...

Immunity need not serve to allow the person to escape responsibility for his actions altogether. It is argued that by disallowing prosecutions while the person is in office but not once they have left, the person remains accountable for any wrongdoing, but in a way which allows them to focus their mind on the job in hand during their time in office.
No because...
Immunity while in office encourages incumbents to hang onto that status when it would be better for them to hand it over. Where a politician knows that their immunity ends when they leaves office, they have an incentive to hang onto office for as long as possible and so avoid prosecution. This can be damaging to the democratic process as well as to the office. For example, it makes it more likely that politicians will try to hang on to office long after they should have retired as old age starts to reduce their energy and judgement. Worse, it can lead to attempts to change constitutions to allow further terms in office, or to rig elections, and harass and undermine political opponents, etc. This problem would not arise where there was no difference in the ability to be prosecuted of the individual whether he was still in office or had already left it.


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