PARLIAMENTARY PREROGATIVES. — Parliamentarians have traditionally been recognized (v. an example in the English “bill” of rights of 13 Feb. 1688) as possessing certain “prerogatives” (with consequent immunities) to guarantee their independence in the exercise of their functions. Such independence, however, in a Rechtsstaat, as modern democratic States generally are, including Italy, cannot be absolute and is therefore usually delimited by the constitution itself; thus, for example, by Article 68 of the Italian Constitution.
First of all, members of Parliament may not be prosecuted for opinions expressed and votes cast in the exercise of their functions. Nevertheless, in the formal modes of expressing this will (in the assembly, permanent or special committees, etc.), they are subject to the discipline established by the internal regulations of the Chambers and to the application thereof by their respective presidencies. Moreover, they are not covered by immunity in respect of anything that does not fall within the exercise of their functions, as, for example, speeches delivered outside parliamentary proceedings (speeches that might be insulting or defamatory, delivered in public or in private, and, when delivered in private, even on parliamentary premises).
Deputies and senators may violate legal provisions and must then be subjected to the appropriate sanctions; but where these are criminal sanctions, they enjoy a prerogative that formally concerns the proceedings, yet may affect the judgment in the sense that proceedings may not be initiated. Without authorization from the Chamber to which he belongs, no member of Parliament may be subjected to criminal proceedings; nor may he be arrested, otherwise deprived of his personal liberty, or subjected to personal or domiciliary search, unless he is caught in the act of committing an offense for which a warrant or order of arrest is mandatory, in accordance with the provisions established in this regard by the Code of Criminal Procedure. The competent judicial authority (the public prosecutor), even before requesting authorization to proceed, may carry out any investigative act concerning the offense that does not impair the parliamentarian’s liberty; on the other hand, the request for authorization may not be omitted, even if an arrest in flagrante delicto has taken place. Authorization must also be requested “to arrest or keep in detention a member of Parliament in execution of a judgment, even one that is final”; it is not required, however (there being insufficient reason for it), if the criminal trial concludes with a sentence imposing only a pecuniary penalty. The internal regulations of the Senate and the Chamber of Deputies govern the procedure for authorization.
The abundant case law of parliamentary practice does not seem to yield any sure and precise rule concerning the criteria for granting or denying authorization. As a matter of propriety, the former course should generally be favored (especially after a conviction, since otherwise a kind of right of pardon would be exercised, even if having only suspensive or temporary effect), but if the act attributed to the parliamentarian has a political motive or character, the Chambers tend toward denial; in fact, the full discretion of assessment
may in practice lead to the recognition of immunities beyond those contemplated in the spirit of the rule, ultimately bringing discredit upon the parliamentary institution. Once granted, authorization cannot be revoked; nor may individual interested parties waive it, since the prerogative is directed not merely, or even primarily, toward them personally, but toward protecting the legislative bodies themselves of which they are members.
The prerogative of a special forum no longer exists, as it did under the monarchy for senators, who were tried by the Senate itself, constituted as a High Court of Justice—a residual prerogative of a system of trial by one’s peers, which has no further rationale under a democratic regime and which has recently also disappeared in traditionalist England (Criminal Justice Act 1948, sect. 30, abolishing the special forum for members of the House of Lords).
The premises of the Chambers (Palazzo di Montecitorio for the Chamber of Deputies and Palazzo Madama for the Senate) likewise enjoy a special immunity, which may be considered founded upon a constitutional custom and is regulated by the internal regulations. Consequently, the powers necessary for policing the Senate and its premises belong to the president (with respect to all those admitted thereto) and are exercised by him, assisted by the quaestors, who give the necessary orders to the guard on duty and coordinate the appropriate measures with the competent authorities. The public forces may not enter the chamber except by order of the president (by virtue of a kind of so-called right of the house) and after the sitting has been suspended or closed. In the event of an insult to the Senate or to any of its members (who are to be regarded as public officials for criminal-law purposes) in the exercise of their functions, or of resistance to the president’s orders, the latter may order the immediate arrest of the offender and his conveyance before the competent authority. Analogous rules apply to the Chamber of Deputies and its members.