CommentarySara Burhan Abdullah, Pitt Law LLM '08 and JD '12, writes about an experience in her home country of Iraq…
As an Iraqi lawyer and US law student, I often check some of the Iraqi websites meant to inform people about draft laws being put before the Iraqi Parliament. One day, I was reading through one such website when my eyes caught a brief report on the October 6, 2009 session of Parliament. One comment detailed the Speaker's support for a request made by a Member of Parliament (MP) to summon the Minister of Transportation for questioning. The Ministry of Transportation had issued a regulation that requires the search of all Iraqi citizens – including the Iraqi MPs – at the Baghdad International Airport. The member who called for the questioning insisted that the requirement of a search was a violation of the immunity of MPs under the Iraqi Constitution.
The Iraqi Constitution affords the MPs the ability to question the prime minister as well as the ministers on matters within the relevant minister's portfolio. At least 25 members must agree with such questioning and an additional article gives MPs immunity from prosecution based on statements made while Parliament is in session, and guarantees that MPs can not be arrested for felonies during legislative sessions unless plainly caught in the act. This provision can be waived by an absolute majority of Parliament if an MP has been indicted.
The immunity is therefore rather narrowly limited to statements made during session. Furthermore, the prevention of arrest is only temporary, and ends once the legislative session ends, at which time the MP could legally be held accountable and arrested for the earlier crime. It is unfortunate, then, that a statute originally intended only to prevent executive interference in legislative operations is now being interpreted by an MP as a "free pass" to effectively place members above the law. It is even more shocking that before the requisite 25 members favored the questioning, the Speaker supported the motion without hesitation.
It is in these kinds of situations where the legal community must raise these vital issues and criticize the MPs in order to bring a central fact to their attention: that the Constitution has not put them above their fellow citizens. This broad assertion of immunity is an insult to the rule of law, where the rulers and the ruled should be subject to the same legal restrictions. The legal community should inform the public on the misuse of the powers that have been placed in the hands of political and governmental officials through the application of bad legal arguments. These MPs should know that being searched in a public place by the police is in the interest of all individuals without distinction, particularly for a country such as Iraq, given its current situation.
The time has come for the legal community and educators to stand against these kinds of measures, turning the public's attention to those who should represent them, how these representatives should act, and the true meaning of the rule of law.
See also:
Iraqi Constitution
