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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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OutlinePublic 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 protections

56 indicators2013

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 a

nd 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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http://www.agidata.org/pam

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 StateCriminal 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 crimeAcross 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

crimesContrary 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

25 Revocation 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, strapnell@worldbank.orgAyompe Ayompe, aayompe@worldbank.org

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.