IMMUNITY PROTECTIONS FOR HIGH-LEVEL PUBLIC OFFICIALS Public Accountability Mechanisms (PAM) Initiative By Stephanie E. Trapnell and Ayompe Ayompe June 12, 2013 THE WORLD BANK 1

Outline 2  Public Accountability Mechanisms  De jure (in law) measurement  De facto (in practice) measurement  Immunity protections data  Findings of in law assessments  Conclusions

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. Public Accountability Mechanisms 3

Public Accountability Mechanisms (PAM) de jure data 4 Financial disclosure (interests, assets, income) 217 indicators 2008, 2012 Freedom of information 36 indicators 2010 Conflict of interest restrictions 128 indicators 2012 Immunity protections 56 indicators 2013

Outputs of de jure data 5  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

Publications 6  Design of public accountability mechanisms  Public Office, Private Interests: Accountability through Income and Asset Disclosure Public Office, Private Interests: Accountability through Income and Asset Disclosure  Income and Asset Disclosure: Country Illustrations (forthcoming)  Financial Disclosure Systems: Declarations of Interests, Income and Assets Financial Disclosure Systems: Declarations of Interests, Income and Assets  Freedom of Information Systems: Access, Rights, Openness Freedom of Information Systems: Access, Rights, Openness  Conflicts of Interest: Restrictions and Disclosure Conflicts of Interest: Restrictions and Disclosure  Implementation of public accountability mechanisms  Financial Disclosure Systems: Roadmap for Implementation/ Performance Assessment Financial Disclosure Systems: Roadmap for Implementation/ Performance Assessment  Freedom of Information Systems: Roadmap for Implementation/ Performance Assessment Freedom of Information Systems: Roadmap for Implementation/ Performance Assessment

Primers on design and implementation 7

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De facto data collection efforts 9  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

Challenges of collecting data on Immunity protections 10  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

Legal Frameworks Public Accountability Mechanisms, Immunity Protections in-law data 11

What is an Immunity Protection? 12  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.

 Head of State  Ministers/Cabinet Members  Members of parliament Coverage: High-level public officials 13

Coverage of high-level public officials 14 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.

Legislation vs Constitutional protections 15  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.

 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 16

Distinguishing between the scope of protection afforded to public officials 17  Absolute 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.

Immunities for Head of State 18 Criminal 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.

Immunities for Members of Parliament 19 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.

When immunity protections do not apply…. 20  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

Exemptions to immunity protections when caught in the act of committing a crime 21 Across 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.

Immunity protections do not apply in the first place for serious crimes 22 Contrary 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.

 Immunity protections should only apply while public officials are in office. Limited Duration of Immunity Protections 23

Limited duration of immunity 24 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

Revocation of immunity vs. impeachment 25  Revocation of immunity or impeachment are measures to prevent public officials from benefitting from immunity protections.

Revocation of immunity vs. impeachment 26  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.

Coordination requirements for revocation of immunity 27 The figure highlights the propensity for higher income countries to require coordination between more than one authority for revocation to occur.

Conclusions 28  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.

For more information please contact: Stephanie E. Trapnell, Ayompe Ayompe, Thank you! 29 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.