Poland’s ruling Law and Justice (PiS) in its election manifesto has committed itself to limiting parliamentary immunity and to remove immunity from prosecution for judges and public prosecutors.
PiS wants to allow the Supreme Court to be able to lift parliamentary immunity at the public prosecutor’s request. At the moment only Parliament can vote to allow for an MP or a Senator’s immunity to be lifted or for them to be detained. The move would require a change in the constitution for which a two-thirds parliamentary majority would be required.
According to the ruling party the public prosecutor would have to inform senior officers of Parliament and its standing orders committee of any request for the lifting of parliamentary immunity filed with the Supreme Court. The officers or the committee would be entitled to refer the matter to the Ombudsman who in turn could refer the matter for decision to a full session of Parliament.
The PiS manifesto also includes provision for scrapping immunity from prosecution from judges and public prosecutors. However, any case brought against a judge or prosecutor would follow a separate procedure, with any decision to press charges being in the domain of the Public Prosecutor General and the decision on the suspect being detained being taken by the Supreme Court.
PiS used to be opposed to any limiting of Parliamentary immunity. That was when it was in opposition.
It was actually the main current opposition Civic Platform which over a decade ago collected hundreds of thousands of signatures petitioning Parliament for limiting Parliamentary immunity. They argued that it had become a way for public officials to hide from justice. It will be interesting whether in these days of controversy over judicial reform they have not changed their minds.
The arguments for parliamentary immunity are well rehearsed. In the old days it was essential that parliamentarians had protection from the crown and the executive. But as the principle of the separation of powers has been established it is difficult to justify why legislators should be immune from any judicial process. Should a PM who drinks and drives have such immunity?
However, MPs do need some protection for what they say in the chamber. That is why in Britain MPs immunity is confined to the chambers of Parliament and does not extend beyond.
The proposal put forward by the ruling party is for the courts to participate in any decision on the lifting of parliamentary immunity, so that MPs are not taking decisions on their own behalf. But it does provide the safety mechanism of allowing MPs to override a decision to prosecute.