Politicians above the Law: A Case for the Abolition of Parliamentary Inviolability.

• Author: Tardi, Gregory
• Position: Book review

Politicians above the Law: A Case for the Abolition of Parliamentary Inviolability J.P. Joseph Maingot, Q.C., with David Dehler, Q.C. Ottawa: Baico Publishing Inc., 2010.

This book deals with a significant topic, of interest to a well-defined, but rather limited audience of specialists. It examines the application of the rule of law, and in some respects the application of the rules of law, to parliamentarians. It also contrasts the treatment in law that parliamentarians receive in countries that apply parliamentary immunity, vis-a-vis those that subscribe to the doctrine of parliamentary inviolability.

The core of the issue is that in order to be able to accomplish their official duties freely and without hindrance, members of all parliaments need a certain degree of exemption from the general law applicable to the population at large. To some degree, this is a reflection of parliamentarians' need for a margin of professional manoeuvre in their work: within their respective houses, they must have some freedom to state publicly what needs to be said so that the legislative body they belong to can make appropriate decisions. In some measure, this is also a factor of the relationship, including the stresses and strains between the legislative branch of the government and the others, in particular the executive. Legislators ought not to be subject to prosecution by the executive arm of the state for performing their tasks, sometimes in opposition to the executive's policies. Legislators also need some other ancillary freedoms, in particular ones that relate to the legislature having first call on their professional time.

The real question treated here is the extent of the necessary exemption. Generally speaking, Maingot classifies all countries of the world into two groups: those of the English speaking genre, namely the Commonwealth and the United States in one category, and the rest of the world in the other. The Anglo countries apply a regime of parliamentary immunity, in which the exemption granted to parliamentarians is limited. The rest of the world has adopted a much broader set of exemptions, namely parliamentary inviolability. This book reasons that this latter type of regime is too broad and is unjustifiable in a modern, democratic context. Maingot has a point and, despite the respect that should be accorded to a former Law Clerk of the House of Commons of Canada, it must be said that he could have presented his argument more...