The limits of the freedom of expression of deputies: from "arrumacus" to "Islamic misogyny"

BarcelonaPolitical debate often strains the seams of institutional decorum and courtesy in political rostrums. This Tuesday, the Committee on the Status of Deputies accepted sanctioning the leader of Aliança Catalana with a minor offense for her comments, Sílvia Orriols, about Najat Driouech, ERC deputy, whom she accused of making "an ostentatious display of Islamic misogyny" for wearing a veil.

A month ago, the same Orriols was the one demanding the resignation of the speaker of the chamber, Josep Rull, offended because he had not called to order the spokesperson for Comuns, David Cid, after he accused him of making "cuddles" with Vox. All this opens up a classic dilemma for law and parliamentary journalism: where does freedom of expression end and punishable offense begin?

Joan Ridao, a professor of constitutional law at the University of Barcelona, explains that to analyze the issue, we must start from the parliamentary prerogative known as inviolability. This figure constitutes "an absolute limit on the actions of judges and courts for expressions used by a parliamentarian," states Ridao, in conversation with ARA. "It is based on the idea that the deputy is conveying the voice of their constituents to the chamber," points out the expert, "and needs to enjoy practically absolute protection for unrestricted political debate."In this way, in the political and parliamentary sphere, "within the right to exercise political criticism there is even the right to offend", highlights Ridao. The European Court of Human Rights (ECHR) has established in several judgments that the deputy "must put up with these offenses". In fact, "the court notes that it is part of its function not only to exercise criticism, but also to receive it, even if the expressions are out of line", qualifies the expert. The only loophole that would break parliamentary inviolability would be if the words constituted genuine incitement to hatred, "a direct attack on a person's dignity due to their ethnic or religious condition".

The situation in Parliaments

That an expression does not have a route through the criminal or civil courts does not imply that it automatically complies with the Parliament's regulations. Deputies must respect a decorum, the application of which, however, "introduces a subjective factor that depends on the moral and ethical threshold and self-demand of the president of the chamber who orders the debate," explains Ridao. "As these are indeterminate legal concepts, it is exclusively the president who must assess whether action is necessary," he recounts. However, even though the position of president requires treating everyone equally and maintaining a neutral criterion, other sources consulted by ARA, with experience in legal advice to Parliament, point out that "one can act differently based on apriorisms, or generate the perception that certain biases exist when interpreting infractions".Faced with a breach of decorum, the presidency has two courses of action. The first is to act in situ at the moment the events occur, calling for order and applying a sanction if appropriate. The regulations grant the president the power to call for order if offensive language is used. If the deputy is repeatedly called to order, the situation may result in the withdrawal of the floor, their expulsion from the hemicycle, or even their temporary exclusion. The second course of action is ex post and consists of noting the controversial expressions without interrupting the session and subsequently forwarding them to the relevant internal body for sanction assessment, as we saw this Tuesday.

However, daily practice shows a change of era with respect to current regulations. Ridao points out that "in other times, when there were no far-right or right-wing populist phenomena, these possibilities were used repeatedly." A loss of authority that experienced an extreme episode recently in Congress when a Vox deputy (and former judge) aggressively lunged towards the vice-presidency of the table.

New codes, same ignorance

For a decade, following European guidelines on good governance, codes of conduct have been added to the traditional disciplinary arsenal. Although they are mainly intended to regulate asset management or conflicts of interest with lobbyists, they include the obligation to maintain exemplary conduct. "An improper use of language can trigger a guarantor procedure for verification through the Commission on the Status of Deputies," explains Ridao, a permanent body that "hears the parties and has the capacity to ultimately impose sanctions on offenders".

Despite having this whole panoply of tools at their disposal, "a great lack of knowledge often prevails, even among the deputies themselves," highlights Ridao. "It ends up being contradictory that certain political representatives announce absolutely sterile criminal lawsuits, instead of taking advantage of and making clear the multiple disciplinary powers that Parliament itself has to punish misbehavior". We will see what the next one will be.