Legal Analysis, Short-Term Consultancy, Parliaments and the courts: what scope for parliamentary monitoring of individual court cases?

Background 

Members of parliament must be free to enjoy their human rights. If not, how can they defend and promote the rights of those who elected them? Yet, around the world vocal parliamentarians find themselves under threat.

In order to protect parliamentarians against abuses and thus defend the institution of parliament, the IPU established in 1976 a Committee on the Human Rights of Parliamentarians, which is entrusted with the examination of complaints alleging violations of the human rights of parliamentarians. Over the years, the Committee has been instrumental in helping to provide those at risk with protection or redress. Indeed, the ultimate aim of the Committee’s work is to achieve, through cooperation and dialogue with the national authorities, a satisfactory solution that is in line with relevant international human rights standards.  

In many cases before the Committee, concerns about the course of legal proceedings feature prominently. These concerns relate to two types of situations. Firstly, where parliamentarians have been subject to human rights violations, such as arbitrary detention or torture, it is crucial that accountability for those abuses is established in a national court of law. Secondly, when parliamentarians find themselves subject to legal proceedings, it is important that they enjoy a fair trial.

Much of the caseload of the Committee shows that at the national level the judicial authorities fail to provide an effective remedy when parliamentarians’ human rights have been violated. Legal proceedings are either stalled or inconclusive and the perpetrators are not held accountable. Similarly, all too often, when legal proceedings target parliamentarians directly they may be unfounded in law and politically motivated.

When the Committee expresses concerns about legal proceedings affecting parliamentarians in the aforesaid two scenarios, it directs those concerns first and foremost to the parliament of the country in which the proceedings are taking place. The IPU is made up of national parliaments, 179 in total, and hence it is logical for the Committee to consider parliaments to be its first port of call in helping to address its concerns. This approach is clearly reflected in Article 19 of its Procedure for the examination and treatment of complaints: “ The Committee shall do everything possible to foster a dialogue with the authorities of the countries concerned, first and foremost their parliament, in the pursuit of a satisfactory settlement”.  Moreover, the Committee has systematically held the view that human rights violations against individual parliamentarians can undermine the institution of parliament as a whole as they undercut freedom of expression and the free exercise of the parliamentary mandate. It is for those reasons that the Committee has always called on the parliament directly concerned to see to it that due process is followed in specific legal proceedings affecting one or more of its members and to question any anomalies that occur on the way.

However, this approach may be seen as being at loggerheads with the principle of the separation of powers and the independence of the judiciary. In many countries, parliaments are free to discuss general matters related to the administration of justice but are limited in their actions when it concerns specific legal matters that are pending in a court of law.

It is important that the Committee has full clarity as to the scope of action that parliaments actually have at the national level to address judicial shortcomings in legal proceedings affecting one or more of its members. This will enable the Committee to strengthen the legal basis of its work and to have and create realistic expectations with regard to parliamentary monitoring of ongoing judicial action.  

Deliverables

The consultant will be entrusted with preparing a report in English or French of between 10 to 15 pages, containing:

1. A one-page executive summary
2. A factual and legal analysis of the global situation (national legislation and practices, concrete examples from major legal systems, applicable international human rights standards, etc.)
3. Key findings
4. Recommendations offering concrete guidance on parliaments’ scope of action in this particular area

It is very likely that the report will only be used for internal use by the Committee on the Human Rights of Parliamentarians. In drafting the report, the consultant will be asked to address the following questions:

• The principle of sub-judice appears to prevent parliaments in Commonwealth countries from debating, let alone pronouncing themselves on, ongoing court matters. Does the same principle exist in civil law countries and other major legal systems in the world?
• How is the limitation to parliamentary monitoring of ongoing court cases formulated in national legislation? Is it the same across the main legal systems in the world?
• Asked the other way around: Up to what point can parliaments oversee – and express concern about - the administration of justice and respect for due process in their countries?
• To what extent can parliaments (help) enforce the implementation of a court decision when the relevant authorities are reluctant to do so?
• Is it possible for parliaments to question the lack of legal action in a specific situation, for instance when the alleged torture has not led to any police investigation, and hence the matter is not before a court?
• Most parliaments can create ad-hoc committees of enquiry to carry out an in-depth analysis of a specific area of concern to society, often in response to one or more incidents that have led to a public outcry. To what extent have parliaments used this instrument to look into alleged miscarriages of justice, including with regard to concrete cases (and possibly ones affecting parliamentarians)?
• Have relevant international or regional organizations and mechanisms taken any position and/or provided guidance on the scope of parliamentary oversight with regard to judicial matters?

Organizational setting and reporting relationships

The consultant will work from home and will report to the Manager of the Human Rights Programme of the Division of Programmes of the Inter-Parliamentary Union (IPU).

Competencies

• Professionalism: excellent knowledge of comparative constitutional law in the area of the separation of powers, in particular regarding the work of parliaments and the judiciary, and human rights.
• Impartiality and objectivity: It is crucial that the consultant be able to demonstrate full impartiality and objectivity given the sensitivity of the subject-matter of the report and the work of the Committee on the Human Rights of Parliamentarians.
• Result-oriented: ability to deliver the results required in a timely manner;
• Communication: excellent drafting ability in either English or French and solid understanding of the other. Good command of Spanish and/or Arabic is considered an asset.

Qualifications

• Education: Master’s Degree in Law, ideally in comparative constitutional law and/or human rights.
• Professional: Comparative constitutional and human rights law experience and expertise, ideally at both the national and international levels. Having written high-quality publications that are directly related to the subject-matter of the consultancy is considered an asset.

Dates and conditions

The consultancy will start in the second part of March 2021. The total amount of work for the completion of the report is estimated at 12 to 15 days of work maximum.  A preliminary report should be submitted by the end of the second week of April 2021 and the final report, following feedback from the IPU Secretariat, by the end of April 2021. The consultant will be home-based. He/she will be paid a consultancy fee upon submission of an invoice once the report has been completed to the satisfaction of the IPU. The maximum daily rate is fixed at 400 CHF.