Modernizing Legislative Ethics: Costa Rica’s Turn?

by Rick Messick

Rick Messick

Rick Messick

The conduct of parliamentarians has not escaped the anticorruption community’s attention.  Ethics codes and parliamentary immunities are everywhere being examined to ensure legislators adhere to the highest standards of conduct and can be held to account if they do not. In Costa Rica, for example, reform-minded parliamentarians recently launched an effort to determine whether their legislative ethics code and immunity rules, unchanged for several decades, need revision.

As a first step, the parliament’s in-house research center prepared a fine summary and analysis of legislative codes of conduct and member immunities in selected European and Western Hemisphere nations. To follow up, I met with reformers to discuss what issues to weigh when amending ethics codes or revising parliamentary immunities. The English PowerPoint Slides for my presentation are here, the Spanish version here. Points emphasized during the discussion:

Conflict of interest.  Don’t copy the conflict rules in force for executive branch employees.  They are limited by the scope of the individual’s employment – to defense, transportation, or whatever.  Barring defense ministry personnel from holding stock in arms manufacturers or transportation ministry staff from owning stock in companies that make buses is straightforward.  But parliamentarians vote on matters that affect every corner of the economy.  Should they be allowed to vote on matters that directly impact their personal economic interests?  Or, at the other extreme, forced to divest themselves of all economic interests to avoid any conflict?

Enforcement.  Who should decide whether a legislator has violated an ethics rule?  Will a decision exonerating a parliamentarian be credible if it is rendered by a parliamentary ethics committee? On the other hand, if responsibility is vested with a court or other independent body, is there a risk that legislative independence will be compromised?

Immunity. Closely related to the enforcement issue is the question of legislative immunity.  Smarting from the Stuart monarchy’s enlisting the judiciary to curb parliament’s power, in 1689 Britain’s House of Commons decreed that no member could “be impeached or questioned in any Court or Place out of Parliament” for anything said during legislative debate. Costa Rica is one of many nations that has expanded that limited immunity to protect legislators from prosecution for anything they say or do anywhere absent the consent of two-thirds of the legislature. Is such broad ranging immunity necessary today to protect legislative independence?  Or should Costa Rican legislators consider whether, as article 30 of UNCAC urges, a balance be struck “between . . . immunities . . .  and the possibility . . . of effectively investigating, prosecuting and adjudicating” corruption?

Lobbying. Lobbying is fundamental to the democratic process; the essence of democracy is that citizens have the right to be heard.  It is also an area ripe for abuse as repeated scandals in democracies North and South, rich and poor underscore.  To curb some of the grosser abuses, or at least bring them to light, the trend is to require lobbyists to register, disclosing who has hired them and whom they have lobbied (see here and here).  Those who lobby the United States House or Senate must also disclose all political donations to legislators, and Chile requires not only lobbyists for private interests but those for state-owned corporations and even government entities, such as the armed services, to file disclosure reports.  In what appears, at least to this writer, to be a first, Chile’s 2014 lobbying law mandates too that the lobbyist’s target — a minister, legislator, mayor, bureaucrat — must disclose who lobbied them on what. (English summary of law here.)

When undertaken in the aftermath of scandal, under intense pressure from voters to act NOW, legislative ethics reform can produce unwelcome and untoward consequences. Parliamentary reformers in Costa Rica are right to initiate the process while the parliamentary waters are calm and reasoned deliberation possible. Their nation’s citizens and their fellow parliamentarians should back the effort wholeheartedly.

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