Status of a Deputy: The Free Mandate, Its Limitation and Protection

2.1.1 Overview over the Status of a Deputy

The rules governing the status of a deputy are fundamentally related to the existence of Parliament as an institution. They include the deputies’ rights, their privileges, responsibilities, immunities and obligations.^[37] The initial question to be answered is whether the mandate is a free or imperative mandate.

An introductory video can be found on www.writingconstitutions.com and on https://doi.org/10. 1007/978-3-030-94602-9_1.

¹ Bradley and Pinelli (2012), p. 660.

²Seeing that the free mandate has become the rule whereas the imperative mandate has become the exception, this chapter focusses on the rules ensuring the free mandate while addressing the imperative mandate only briefly.

³Bradley and Pinelli (2012), p. 662.

the foundation for a representative democracy, several rules ensure that a deputy may maintain his/her independence from both external and private influences and that he/she may properly exercise the mandate. Among these rules, in particular questions of incompatibility and immunities,^[40] reimbursements and possible reasons leading to a loss of the mandate stand out. All these rules define and guarantee parliamentarian mandate as such and partially restrict its exertion.

2.1.1.1 Free Mandate, Incompatibility, Loss of Mandate

A mandate is ‘free’ when a parliamentarian is not bound by instructions whereas deputies equipped with an imperative mandate are subject to the control of their party.^[41] Two institutions are located somewhere in between the aforementioned opposing concepts: recall and termination of mandate because of change in party affiliation.^[42] As these institutions restrict the freedom of mandate, they are—in international practice—discussed in the context of an imperative mandate.^[43]

Irrespective of whether parliamentarians are subject exclusively to their con­science, whether they are controlled by the electorate or dependent on their party, the question arises whether they can perform other functions in addition to their mandate, whether of a public or private nature. The question of incompatibility is closely related to the status of a deputy. It stipulates certain limitations with regard to the deputy’s extra-parliamentarian engagement. M. Ameller^[44] defined incompatibil­ity as “the rule that prohibits members of Parliament from engaging in certain occupations during their term of office. Like ineligibility, its object is to prevent members from becoming dependent upon either public authorities or private interests.” However, ineligibility differs from incompatibility in so far, as it prevents a person from participation in parliamentary elections and is seen as part of electoral law whereas incompatibility is a much broader concept and refers to a person already elected.^[45]

Finally, the question arises as to whether an MP can lose his mandate. Some constitutions address this issue to the extent that they standardise a catalogue of events that result in a loss of mandate. This will be discussed at the end of this section.

2.1.1.2 Purpose and Function of the Rules

The overall purpose of the free mandate and its constituting and securing rules is to retain and strengthen democracy.

The purpose of incompatibility as such is to maintain the deputies’ neutrality and ensure that their private or public occupations do not influence their role as representatives of the nation.^[46]

The same applies to the question of remuneration and similar benefits such as facilities and staff. Nowadays, salaries and allowances form an integral part of the deputy’s status and serve three main purposes: First and foremost, they ensure that every citizen has access to Parliament and that the electoral mandate is not reserved to the wealthy class. Furthermore, it is intended to protect the deputies from external pressure and temptation, thereby preventing corruption. Finally, it aims to compen­sate for the expenses associated with the mandate.^[47]

The potential loss of parliamentary mandate is a consequence the right to free elections. However, the rule of law—at its most fundamental principles—implies that law must be followed by everyone, including both individuals and authorities. The exercise of political power by people who seriously infringe the law puts the implementation of this principle at risk, which is in turn a prerequisite for democ­racy.^[48] On a large scale, the loss of a parliamentary mandate due to criminal offences therefore protects legality. In other cases, the loss of mandate may simply serve to ensure its proper exercise.

2.1.1.3 Historical Context

The origins of imperative mandate are to be found in Roman law.^[49] Deputies had to take oaths neither to vary from their instructions, nor to overstep their mandates.^[50] It was Edmund Burke who conclusively established the principle of representative democracy in his Speech to the Electors of Bristol in November 1774. He stipulated that members of the Parliament are not delegates of a local or political economic caucus but represent the whole nation.^[51] He emphasized that the making of decisions in Parliament is based on the sovereignty of the nation, i.e.

The remuneration of MP, as it exists today in almost all countries,^[55] has also undergone a historical change. Initially, remuneration was designed to compensate for the loss suffered by a Member of Parliament as a result of being unable to carry out his or her professional duties during sessions. The tax-based suffrage of the nineteenth and early twentieth centuries led to the fact that only wealthy citizens were elected to Parliament. The need for remuneration was correspondingly low. However, with the democratisation of electoral law, the increase in parliamentary duties and responsibilities, and incompatibilities in the mandate, the need for a decent salary grew as the simultaneous exercise of professional activities became increasingly difficult.^[56] Therefore, parliamentary remuneration became a proper salary designed to guarantee MPs a decent standard of living and to protect them from corruption.^[57] Rules on incompatibilities and loss of mandate have also been developed as long as parliamentary representation became more independent.

2.1.1.4 Related Topics

The status of a deputy also includes the aspects of indemnity and immunity, which, however, are dealt with in a separate section.^[58]

Furthermore, every constitution ought to provide several rules that specify the deputies’ rights and duties in order to ensure the proper exercise of the mandate.

Lastly, the explicit standardisation of cases leading to a loss of mandate relates to the question of eligibility. In many cases, constitutions simply refer to their ineligi­bility clauses when specifying the cases leading to the loss of a mandate. The

Fig. 2.1 Structural approach when drafting clauses concerting the status of the deputy

prerequisites for (active) eligibility, however, are closely linked to the parliamentary elections and are therefore covered in Vol. III of Writing Constitutions.

2.1.1.5 Structural Approach and Guiding Questions

The structural approach in Fig.

2.1.2 Details of the Clause

2.1.2.1 Is the Mandate Free or Imperative?

The first question to be decided is whether the parliamentarian is bound by instructions. Whereas most political systems do impose factual boundaries to the freedom of the mandate, some constitutions also allow direct instructions to be given to the members of the legislative (Table 2.1).

On the one hand, some countries explicitly prohibit the imperative mandate. In these countries, parliamentarians are theoretically solely subject to their conscience, in practice of course cornered by the party line of their factions. On the other hand, as already outlined above, the question of dismissal of a parliamentarian is—to a certain extent—linked to the question of the imperative mandate. If one subscribes to the theory that parliamentarians are legally bound by their promises to voters, it is only logical that the electorate or the party should recall them if they do not adhere to them.^[59] In the Seychelles, a person elected indirectly may be recalled by its party any time without having to state any grounds for the decision. Such clauses tend to forget that parliamentarians owe their duty to the constitution and the country and not to the voters of one electorate. In fact, the parliamentarian also needs to consider the

Table 2.1 | | Freedom of mandate

interest of those people who are ineligible to vote, e.g. the climate future of the children.

In other countries, a parliamentarian’s dismissal depends on the prior support of a certain quorum of voters. Several voters representing a specified percentage of the registered voters in the affected constituency may petition for the calling of a referendum to revoke the mandate. Sometimes, this procedure may not be initiated unless a certain period of time of the term of office to which an official has been elected has lapsed.^[60] However, the issue of recall is often dealt with at legislative level rather than on constitutional level.

One of the problems in modern democracies, from the point of view of parlia­mentary stability and fidelity to voters’ choices is the practice of elected representatives abandoning parties in whose lists they were elected (“crossing the floor”).^[61] The Venice Commission is of the view that crossing the floor should not entail a loss of mandate as it is contrary to the principle of a free and independent mandate.^[62] Once elected, deputies should primarily be accountable to the voters who elected them and not to their political party.^[63] However, in proportional representa­tion systems, a deputy may in effect be rather a representative of a party than of the electors as the electors did not have a choice between party candidates.^[64] Therefore, several countries (i.e. non-European countries) provide that deputies loses their seat due to change of party affiliation.

Another topic that is usually addressed in the context of free mandate is the question of party discipline. Party discipline refers to the ability of a fraction to impinge on/influence its individual members in a way that they stand by the opinion proposed by the group as a whole. Party discipline is not incompatible with the free mandate. It primarily serves as a guarantee to achieve a certain quorum and is thus becoming an important concept as it provides for stability, strong parties and ensures that the Government is able to act. Moreover, party discipline enables the electorate to vote based on a complete and clear picture. If a decision is to be made within parliament, a parliamentary group will usually decide about its point of view in an upstream internal debate. Generally, the members of the group then adhere to that decision. The political debate is thereby shifted before the parliamentary debate and vote. Mature free choices in Parliaments will within reason apply this mechanism to establish an effective modus operandi. However, certain exceptions where deputies are expressly exempted from any party discipline exist. These exceptions generally refer to highly ethical questions such as same-sex marriage, assisted suicide or embryonic therapy.

Finally, question have been asked, whether the occurrence of a liquid democ­racy,'^[65] cause by instant communication via electronic media is endangering the free mandate of the deputy.^[66]

2.1.2.2 Is the Mandate (In)compatible with Other Occupations?

The question of incompatibly is a very common and significant topic in the context of a parliamentarian’s status. The constitutional approaches deviate strongly from each other. However, Table 2.2 tries to systematize the incompatibilities and serve as guidance when addressing the issue.

Generally, incompatibilities are not always regulated on constitutional level. Several constitutions only provide for a basic rule of incompatibility and otherwise refer to (organic) law.^[67] This especially applies to clauses of incompatibility regard­ing judiciary functions but also to other incompatibilities.^[68] In view of the fact that a constitution aims to form the basic framework of a state, it may indeed be advanta­geous to outsource the individual and partly detailed rules and to implement them through ordinary law rather than on a constitutional level. Serbia, for example, sets out in art. 6 of its constitution that “nor person may perform a state or public function in conflict with their other functions, occupations or private interest. The presence of conflict of interest and liability for its resolution shall be regulated by the Constitu­tion and Law.” This is a fine example of how to shift rules of incompatibility from the constitution to (organic) law.

Against this background, the constitutional practice of incompatibility is quite divers. Some constitutions provide for a very elaborated and detailed regime of incompatibilities^[69] whereas others simply prohibit the concurrent holding of multi­ple public offices or—even broader—the concurrent engagement in any other entrepreneurial activity. Then again, other constitutions do not generally prohibit concurrent entrepreneurial activity but limit commercial engagement to those cases that do not involve any direct or indirect (e.g. shareholding) contractual relationship with the state.

The principle of separation of powers is the source of the “traditional” incompatibilities in those countries that declare a parliamentarian mandate incom­patible with ministerial, judicial or certain public functions.^[70] Nevertheless, the incompatibility rule is basically at odds with the concept of a parliamentary regime which is based on close collaboration between the legislature and the executive.^[71] Therefore, many parliamentary systems not only allow but also actively encourage

Table 2.2 | | Incompatibilities of the mandate of the deputy

Table 2.2 (continued)

the concurrent occupation of parliamentary and ministerial duties with the goal of strengthening the bonds between the legislative and the executive government.^[72]

If a country decides to adopt statutes of incompatibility of ministerial and parliamentarian duties it also has to provide rules regarding the consequences for the seat of those parliamentarians who become ministers. The seat of a deputy can temporarily be substituted, it can temporarily be suspended or that member ulti­mately loses his seat. Art. 77 par. 2 of the Slovakian constitution for example provides that if a Member of Parliament has been appointed member of the Govern­ment, that mandate shall not terminate within this period but shall not be exercised. The same rule applies to Estonian parliamentarians. Their mandate is suspended but they restore their mandate once released from duties as a member of the govern- ment.^[73] Belgium^[74] and Bulgaria^[75] on the other hand, provide rules for replacements.

Another incompatibility may occur with regard to judicial functions. The distinc­tion between those who make the law (legislature) and those who apply the law (judiciary) result from the principle of the separation of powers. In some countries, this incompatibility applies to the judiciary as a whole whereas in other countries it only applies to higher courts. At the same time, in other countries^[76] the concurrent holding of parliamentary mandate and judicial office does not raise any concerns at all.

Some constitutions also provide provisions that prohibit to concurrently serve as a member of the national Parliament and the assembly of a federated state respectively of an assembly on a regional, provincial or municipal level. It is also important to note that—since the European elections of 2004—it is generally prohibited to serve as a member of the European Parliament while occupying national parliamentary mandate (before 2004, it was common to simultaneously enjoy both memberships).

The question of the parallel exercise of several functions—whether in the form of various public offices or in the form of public and private activities—is at the same time inseparably linked to the principle of the separation of powers and the pursuit of independent and impartial mandate holders. In particular, care should be taken to ensure that private economic interests do not influence the exercise of public mandates and that doors will not be opened for abuse. Against this background, it seems sensible to enshrine incompatibility regulations in national law. However, the regulations at constitutional level should be kept to a minimum.

Another aspect to be aware of when deciding whether multiple mandates (national and regional level) are compatible is the deputy’s capacity. Multiple mandates inevitably mean multiple duties and—especially in terms of responsibility and accountability—one mandate should not be occupied at the expense of the other mandate.

2.1.2.3 Does the Constitution Provide for the Deputy's Salary?

Generally, the constitutions examined provide for a rule that addresses the aspect of the deputy’s salary (Table 2.3).

As stated above, detailed regulations on a constitutional level would simply go beyond the scope of a manageable constitution. In general, constitutional provisions with regard to the status of a deputy often only address its basic structure. This also applies to those mechanisms designed to ensure the neutrality of a Member of Parliament and control and resolve conflicting interests such as the question of parliamentary reimbursement. Whilst salaries and allowances undoubtedly play an important role in the structure of the mandate, most of the constitutions simply stipulate that deputies are entitled to remuneration which is otherwise specified by law. Some constitutions explicitly add that deputies may not have any other income

Table 2.3 | | Salary clauses relating to the deputy

apart from that.^[77] Other laws, such as German law, provide that activities of a profession or other nature are generally permissible alongside the mandate and that income may also be earned from such activities.^[78] However, the income from secondary activities must be disclosed if it exceeds a certain limit.^[79] It is important to note that such regulations are ordinarily no longer part of constitutional law but are governed by ordinary law.

In almost all parliaments, members enjoy other facilities and benefits in addition to the basic salary and supplementary allowances.^[80] Members may be provided with fully equipped offices including secretarial assistants and expenses such as telephone bills, office equipment, stationery, etc. Official housing, official vehicles, free use of the public transportation system, assignment of security guards, etc. are likewise related to the exercise of the mandate.^[81] Yet again, for the reasons outlined above, these provisions are generally established by law.

It can be concluded that the predominant constitutional practise is to grant a salary to members of Parliament which compensates them for their professional activity, and which is supplemented by ordinary legislation with further components of remuneration. The democratic legitimacy of the determination of the parliamentary salaries is thus largely guaranteed by the constitution or the legislature. At the same time, however, the problem of “self-service” remains an ongoing, much discussed and highly controversial issue. It addresses the conflict resulting from the fact that Members of Parliament, as being the legislative body, often determine the level of their remuneration themselves.^[82]

2.1.2.4 Does the Constitution List Causes That Lead to a Loss of the Mandate?

It has to be decided whether the constitution ought to provide rules triggering a loss of mandate prior to its expiry (Table 2.4).

When addressing the question of loss of parliamentary mandate, some constitutions simply provide that deputies lose their mandate—either automatically or following a specific decision—if a situation occurs that would lead to ineligibility to be elected. However, more than 40 % of the Council of Europe Member States have specific constitutional provisions regarding the loss of MP mandates; others deal with the issue at legislative level.^[83] The rules provide various grounds leading to the loss of parliamentary mandates among which, however, the issue of being charged with a criminal sentence or convicted of a crime appears to be the most common one. On a larger scale, it may be distinguished between those countries in

Table 2.4 | | Loss of mandate

Table 2.4 (continued)

which the nature of the offence is decisive and those that refer to the nature of the sentence. Then again, both categories may be combined.

Cases regarding the nature of the offence often include electoral offences. Some constitutions also refer to immoral behaviour, however, a distinction must be made between immoral offences (e.g. Finland, Nepal) or a “flagrant violation of statutory rules of ethical conduct for deputies” (e.g. Azerbaijan, Zambia). Moreover, some constitutions limit the loss of mandate for criminal offences to those that are intentional. Some other countries, such as Portugal or Brazil, specifically define offences that lead to the loss of the office. The nature of the sentence may also be decisive. Some countries are very strict and consider any kind of judicial sentence sufficient to deprive the member of his mandate. Others limit the loss of mandate to crimes leading to imprisonment. Even more restrictive are those countries that state that a certain minimum period of imprisonment has been reached.

In addition to the exclusion of offenders, there are other cases that lead to a loss of mandate. Due to the many different regulations, it is not possible to provide a conclusive list above, but the table presents an overview of the regulations that can be found most frequently. This includes, in particular, the loss of mandate due to a failure to properly exercise the office. It ensures the discipline of the parliamentarians. In some countries parliamentarians additionally need to sign attendance sheets to be entitled to remuneration.

Resignation or the loss of citizenship are likewise common in constitutional practice and other constitutions traditionally include bankruptcy as another reason.

The procedure concerning the loss of mandate is often rather complex and may involve an additional intervention by Parliament.^[84] Moreover, the countries’ provisions in this respect are usually featured in ordinary law. First, the procedure may provide that a parliamentarian is automatically disqualified and loses his/her seat at the time the verdict of the criminal court becomes final. Moreover, the procedure may also provide that, in addition to the criminal conviction, a further special resolution is required which expressly states the deputy’s disqualification. This would leave it to the judge’s discretion as to whether the criminal conviction would at the same time lead to the loss of the mandate. Furthermore, the process can be designed in such a way that the loss of mandate requires a parliamentary decision in addition to the court ruling.

The loss of parliamentary mandate is a restriction to the right to free elections and must therefore be based on clear norms of law, pursue a legitimate aim and observe the principle of proportionality.^[85] Although many countries have constitutional rules on the loss of mandate, some do not find it entirely unacceptable to resort to ordinary law. Nevertheless, the Venice Commission recommends that the most important aspects be regulated in the constitution.^[86] The Venice Commission, however, holds that whereas it may be suitable for legislation to provide for restrictions to operate automatically for the most serious offences or convictions, discretion for the judges in deciding on the specific case may be suitable in less serious cases and, more generally, where the conviction relates to sitting MPs.^[87]

2.1.2.5 Are the Rules Regulated in the Constitution or by National Laws? As it has been indicated throughout the chapter, many of the regulations affecting parliamentarians are not made at constitutional level, but rather through national laws. Often, a constitution only provides for the basic regulation and refers to national law for more specific details. It may—for example—be the case that the general possibility of dismissing a deputy for a certain reason is provided for in the constitution, and that the implementation of such dismissal is then specified in detail in ordinary law.

Finally, if something is regulated at constitutional level, it should always be borne in mind that the requirements for constitutional amendments are generally higher than for amendments to ordinary laws. Against this background, as well, detailed provisions in the constitution should be carefully considered.

2.2