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Immunity
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Tuesday, 21 September 2010 14:07

The Senator has parliamentary immunity as the Member of the National Assembly (Article 104, Paragraph 1). The immunity aims to protect the Senator against any threat or frighten act committed by third person, politician or private person. The immunity ensures the independency of Senator to implement his/her mandate without any frighten, detention with violation or intentional corruption act; this immunity covers two aspects under the diversity of two types of thought: protection against any act of implementation of his/her mandate, but off-duty (Senate shall not be violated).

Case 1 (Irresponsibility): The immunity in this case is absolute criterion; the Senator <<shall not be accused, detained, apprehended or arrested in the cause of expressing their opinion or idea in carrying out their function>>. (Article 104, Paragraph 1) Irresponsibility is not to protect Senate in the name of individual, but protect function of the Senator. The irresponsibility covers the election, expression of opinion, request and report of Senator within the framework of plenary session or in the commission. The immunity shall not require Senator not to respect the Internal Regulation of the Senate that safeguarded by the President of the Senate.

Case 2 (non-violability): In this case is not absolute, it means that immunity of the Senator can be withheld by other Senators. The non-violability provides more protection on individual than function by not considering the Senator as a private personwho can be subject of frighten and apprehension without reasons. Based on Article 104, Paragraph 3 stipulates that <<accusation, arrest or detention of any Senator shall be done, in case of agreement made by the Senate or Permanent Committee during the plenary session of Senate>>. The rule means that Senator shall be accused to the court in responsible for civil or criminal case, but shall have agreement from other Senators. The revoke of parliamentary immunityshall require to 2/3 majority, recently 50+1 of Senators, despite of Article 104 does not stipulate clearly in this regard. In opposite, there shall not have agreement from the Senate for the arrest, if Senator commits actual crime act (Article 104, Paragraph 3). In this regard, the competent authority shall report to the Senate on the case of arrest. The accusation of Senator shall be suspended in case of actual crime act or after agreed to be accused, but this decision must be made by ¾ of the entire of Senators. Despite the Constitution does not clarify on the non-violability that can only suspend the accusation or arrest by considering the Senator is under the protection of their Senate during its mandate. Post mandate, the accusation shall be done or began.

(Subtracted from Parliamentary Cultures prepared by Department of Commissions)
 
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