Politicians Immunity: a Vice Or Virtue?

Politicians’ Immunity: A Vice or Virtue?

Karthik Reddy, Moritz Schularick and Vasiliki Skreta

In the wake of the financial crisis and the numerous instances of public malfeasance it revealed, a growing number of commentators have argued for the abolition of the privilege of immunity from prosecution enjoyed byGreek politicians. We provide original and systematic evidence that democracies whose politicians enjoy stronger immunity protection do, indeed, suffer from more corruption and poorer overall governance. Our findings are particularly important at a time when many countries in the world teeter on the brink of economic collapse because their public finances were badly mismanaged. Likewise, movementssuch as the Arab Spring, the Indignados, and Occupy Wall Street reveal the strong desire of younger generations, who suffer the most from unemployment and lack of opportunity, for greater transparency and accountability in government. Our evidence suggests that the legal institution of immunity should be re-examined in established democracies.

Immunity and the Abuse of Power

In Greece, commentators have arguedthat laws that placed politicians above the law allowed them to profit financially from illegal activities. The resulting mismanagement of funds cost taxpayers hundreds of millions of euro. The case of AkisTzochatzopoulos, a former Greek Minister of Defense who faces accusations for mishandling and pocketing millions of Euros, is telling:according to the testimony of his cousin, Nikos Zigras,Mr. Tzochatzopoulosexpended millions of euro on vote buying and other activities during each election cycle in order to securehis own re-election and continue to enjoy the immunity protection afforded to Greek ministers. Ekathimerinireported that SDOE, Greece’s financial crimes squad, has compiled a list of "30 politicians including former ministers, current lawmakers, local authority officials and general secretaries at ministries, who it is investigating for corruption and tax evasion."Whilesome Greek parliamentarians have themselves begun to advocate for waiving immunity from prosecution, Parliament has done so for only some select politicians, such asMPs from the far-right Golden Dawn party. Other politicians who may have committed financial crimes, such as those accused in the Siemens scandal earlier this year, remain impervious to the threat of prosecution.

The observation that politicians’ immunitymay encourage corruption is neither new nor uncommon: for decades, concerns about the misuse of immunity have been raised in a number of countries, among them Brazil,El Salvador, France, Italy, and Mexico.

Measuring Immunity

While there is ample anecdotal evidence that immunity protection fosters corruption, there has been virtually no attempt thoroughly investigate this issue. A likely reason for this omission is the lack of available empirical data on immunity provisions. In a recent paper, we undertake the first systematic attempt to code the strength of immunity protection that is granted to elected officials in democracies around the world. In order to gather data on the strength of these provisions, we consulted written constitutions, founding documents, legislative acts, case law, statutes, and legislative rules of procedure in 74 democratic countries on all six settled continents.

We find that the primary differences among various immunity regimes are three: the procedure required to lift immunity, which can be more or less burdensome; the duration of immunity protection, which may be coterminous with the term in office or extend beyond it; and the scope of activities covered, and prosecutorial action prohibited, by immunity.

Our immunity score is based on six variables each for three groups of politicians—legislators, ministers, and chief executives—that measurethe aforementioned differences in procedure, duration, and scope. The score produces values that range from 0, which represents no immunity protection, to 1, which represents maximum immunity. The accompanying map depicts the results of our scoring in our sample of 74 stable democracies. Greece's score is one of the highest in Europe—Greece is now one of the most corrupt countries in Europe—whileParaguay and Argentina top the list worldwide.

Immunity and Corruption: The Evidence

The accompanying figure demonstrates our main findingthat stronger immunity protection is associated with higher corruption, after the effects of income and the quality of democracy are excluded. As measures of corruption, we use both the “Control of Corruption” indicator from the World Bank, as well as the Transparency International “Corruption Perceptions Index.”[1] Both measures yield virtually identical results. The visual impression sends a clear message: there exists a strong positive relationship between the strength of immunity and corruption.

Furthermore, we also find that higher immunity is associated with bribery and greater mismanagement of public funds after controlling for other economic, political, historical, cultural and demographic determinants and correlates of corruption such as income, electoral rules, quality of democracy, press freedom, legal origin, and trade openness, among others.

Clearly, reverse causality is a potential concern that must be addressed. Corrupt politicians may choose stronger immunity protections in order to protect themselves from prosecution. The evidence, however, disputes this proposition. We show that immunity provisions are highly persistent over time and are a function of the original constitutional choices made at independence. For instance, Argentina has strong immunity provisions and high levels of corruption, but its rules have not changed since their inception 159 years ago. Historical contingency, not politicians’ machinations, account for the observed variation in immunity rules around the world. The longevity of immunity rules seems to be the norm: In an analysis of American democracies founded before 1900, we find that the average and median ages of immunity regimes to be 148 years and 126 years, respectively. There were only 4 substantial changes to immunity regimes in the Western Hemisphere since 1900.

Reconsidering Immunity

We find substantial evidence that legal provisions that supply politicians with immunity from criminal prosecution are associated with poor governance. Our findings, along with the anecdotal evidence from Greece and elsewhere that they corroborate, suggest that such provisions should be reconsidered. In light of the fact that public corruption and financial mismanagement helped to mire Greece in its current fiscal plight, such reconsideration of immunity would not be inappropriate.

[1] In the interest of clarity, we invert the indices so that countries with higher corruption receive higher values; both indices, in their original form, are constructed in a way that assigns higher values to countries with less corruption.