KARACHI: Parliament has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies across the world. While in most countries, it holds the powers to debar a member of the legislative body, in a few the authority rests with the judiciary, which wields it only sparingly though.
In the United States and Syria, courts have no powers to disqualify a member of parliament. In the US, any person convicted by a court can contest presidential or congressional election. And there is a recent precedent of a legislator who ran his latest campaign while serving a jail sentence, winning his bid for re-election. In India, the authority lies with the president or the chairperson of the upper house of the parliament called Rajiya Sabha and the speaker of the lower house called Lok Sabha. In a few countries, such as Belgium and Namibia, judiciary has gained supremacy over the legislature.
In several countries including Germany, Hungary, Slovenia, Ecuador a court ban requires an endorsement by the parliament or some other state institution for a legislator to be unseated. In some countries, two thirds of parliamentary vote is needed to expel a member.
Indira Gandhi, Nelson Mandela and Nawaz Sharif fall in the club of political leaders convicted by courts who went on to hold their countries’ reins.
In Australia, the parliament can debar an elected member over treason or financial bankruptcy. However, it cannot disqualify or unseat a member over violation of discipline.
In Greece, a member of parliament automatically stands deprived of their status through loss of citizenship.
Expulsion of a member by an assembly is commonly employed in countries with British parliamentary traditions as well as in Japan, where the grounds for expulsion are stipulated as absence from meetings without a valid reason, disclosure of confidential information to outside persons and failure to respect the order or the dignity of the assembly.
In Australia, a member who fails to attend parliamentary sittings, without authorization, for two months running loses his or her seat. This is also the case in Cape Verde and the former Yugoslav Republic of Macedonia (unjustified absence for more than six months), in Latvia (unjustified absence from more than half the planetary sittings of the parliament). In Niger, unjustified absence from all the sittings of one of the two ordinary sessions also provides ground for expulsion, but such action requires a decision by two-thirds of the National Assembly and a Supreme Court ruling. The Supreme Court may also expel members for other reasons at the Bureau of National Assembly’s request. Provision for expulsion in India is made when a member is found guilty of misconduct or other offences unworthy of a parliamentarian. In Bolivia, each house may decide by a two-thirds majority to expel any member found guilty of major misconduct in the exercise of his or her duties. In the United Kingdom, a member of the House of Commons may also be expelled by decision of the House, in particular for breaching the code of conduct or the rules governing discipline. Nowadays, such an expulsion would only be contemplated following an inquiry and recommendation by the Select Committee on Standards and Privileges.
In matters relating to corrupt practices it is the President who will, in consultation with the Election Commission, pass the final orders even if the dispute is adjudicated by the Courts. Disqualification in matters relating to defection is decided by the Speaker or the Chairman of the House depending upon whether it is Lok Sabha or the Rajya Sabha. A person convicted of any offence and sentenced to imprisonment for varying terms shall be disqualified from the date of conviction and shall be disqualified for a further period of six years since his or her release.
In a case last year, the Election Commission of India told the Supreme Court it exercised its power to remove or reduce the disqualification of a convicted elected representative on several occasions. The poll panel placed before the apex court only two examples, dating back to 1977, when it had exercised this power provided under the provisions of the Representation of People (RP) Act. The ECI, in its affidavit filed in the apex court, said it had in 1977 reduced the period of disqualification of Shyam Narain Tiwari and Mitra Sen Yadav, who were both MLAs from Uttar Pradesh and were disqualified under the RP Act for being convicted of criminal offences. The poll panel said that all the other cases where it had exercised its power, the disqualifications were for failure to lodge account of election expenses.
Disqualification of an elected member of parliament pursuant to a judicial decision is a practice that exists in virtually all countries, except Syria and the US. Under the US Constitution, only the House of Representatives and the Senate have authority to decide on the matters pertaining to the election and qualifications of their members.
In the US, there is no bar on a convicted or jailed person contesting a presidential or congressional election.
James A. Traficant Jr., an Ohio populist in the House of Representatives who was convicted on corruption charges in 2002, became the second member of Congress to be expelled since the Civil War. After serving seven years in jail, he was released. He contested elections twice after the release on the same seat. In the same vein, Matthew Leon ran his election campaign from jail and succeeded in winning a seat in the Congress. In a November 1992 referendum, the Arkansas electorate approved a measure that became Amendment 73 to the state constitution, which imposed definitive limits on the length of time that officials could hold elective office. The Supreme Court found the limits on congressional service invalid saying that it was for the people to decide who would rule them.
The Senate is tasked with handling the impeachment trial in which there is a higher threshold that must be reached in order for an impeachment to go forward. What that means is that in the Senate, a higher percentage of the body has to vote in favor of conviction than in the House of Representatives. In the House, a simple majority is needed, and in the Senate, they need a two-thirds majority, or 67 percent.
The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. Under Article I of the US Constitution, Section 3: The Senate shall have the sole power to try all impeachments.
In several countries, a court conviction automatically entails forfeiture of the parliamentary mandate. In Belgium, for example, a member of parliament who is deprived by a court verdict of his or her civil and political rights, no longer fulfills the eligibility criteria and must be deemed to have resigned. The same applies to Kazakhstan. In Namibia, members of parliament who are sentenced to more than 12 months in jail are automatically disqualified. However, members only lose their status as a deputy when the judgment becomes final.
In a number of countries such as Germany, Hungary, Slovenia, Ecuador, a court conviction does not automatically entail forfeiture of the parliamentary mandate. It must be followed up by a decision on the part of the assembly or any other state body.
In Germany, the Council of Elders of the parliament rules on disqualification in cases of criminal conviction. Members have two weeks to file an appeal with the plenary assembly, appeals against whose decision lie with the Federal Constitutional Court. If the court declares a party to be unconstitutional, its members’ mandate ends on the date of verdict.
In Hungary, parliamentarians may be disqualified if they are declared legally incompetent, deprived of their political rights, sentenced to a jail term for criminal offences, or found to be in debt to the State. However, disqualification will not be automatic in any of these cases. The assembly must always adopt a decision after a report by a special committee, which gives the member a hearing. A two-thirds majority is required by for unseating the member.
In Denmark, the parliament may expel a member convicted of an offence that renders him or her unworthy to retain a seat in the parliament. In Benin, the parliament may permanently expel a member convicted of a criminal offence, but only a two-thirds majority.
According to Inter-Parliamentary Union, a global organisation of national parliaments, a member’s disqualification from parliament requires a decision by parliament as a whole, and should only follow conviction for a criminal offence, not loss of party membership.
India’s Indira Gandhi got elected as prime minister in 1980 after having been disqualified by a court in 1975. Cuba’s Fidel Castro, sentenced to 15 years in jail in 1953, was later on elected as prime minister. Brazil’s Dilma Vana Rousseff was the 36th President of Brazil, holding the position from 2011 until her impeachment and removal from office in 2016. After the 1964 coup d'état, she had joined left-wing and Marxist urban guerrilla groups that fought against the military dictatorship. Rousseff was captured, tortured, and jailed from 1970 to 1972. Kim Dae-jung was President of South Korea from 1998 to 2003, the 2000 Nobel Peace Prize recipient, and the only Korean Nobel Prize recipient in history. He was sometimes referred to as the "Nelson Mandela of South Korea". In 1980, Kim was arrested and sentenced to death on charges of sedition and conspiracy in the wake of a coup. Nelson Mandela served 27 years in prison before his struggle ended in him becoming president of South Africa from 1994 to 1999. Congo’s Patrice Lumuba was sentenced to a 69-month jail term in 1959 but was released after nine months. In 1960, he became Congo’s youngest prime minister at the age of 34 years. Nigeria’s Olusegun Obasanjo, who had in 1995 been sentenced to a jail term for coup, got elected as president in 1999 and 2003 after his release. Abdulsalami Abubakar, after serving a jail term, headed Nigeria in 1998 and 1999. In Pakistan, deposed prime minister Nawaz Sharif was handed down a life sentence by a court that convicted him of hijacking General Pervez Musharraf’s plane. However, several years later he got elected to the parliament and became prime minister in 2013 for a third term.