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 forums. This Tuesday, the Commission on the Status of Deputies accepted sanctioning the comments of the leader of Aliança Catalana with a minor offense, Sílvia Orriols, about Najat Driouech, an ERC deputy, whom she accused of making "a show of Islamic misogyny" for wearing a veil.

A month ago, the same Orriols was the one demanding the resignation of the president 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 "hugs" with Vox. All of this opens up a classic conundrum for law and parliamentary journalism: where does freedom of expression end and punishable offense begin?

Joan Ridao, 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 to the action of judges and courts for the expressions used by a parliamentarian," states Ridao, in conversation with ARA. "It is based on the idea that the deputy is transferring the voice of their constituents to the chamber," points out the expert, "and needs to enjoy an almost absolute guarantee 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 (ECtHR) has established in several rulings that the deputy "must put up with these offenses." In fact, "the court notes that it is part of their 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 a genuine incitement to hatred, "a direct attack on a person's dignity due to their ethnic or religious condition."

Despite this possible avenue, there are experts who fully dismiss any external intervention in what is said in the chamber. Josep Costa, professor of political theory at Pompeu Fabra University, warns that "the lack of jurisdiction of the criminal justice system" and ordinary courts regarding parliamentary discourse "is absolute." Based on the ECtHR's doctrine, Costa recalls that this inviolability is "absolute, permanent, perpetual, and has no exceptions," which means that courts cannot judge a public representative "for hate speech, incitement to terrorism, or anything."

The situation in Parliaments

That an expression has no recourse through the criminal or civil route 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, 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 states. 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 "action can be taken differently based on apriorisms, or the perception can be generated that certain biases exist when interpreting offenses".Faced with a departure from decorum that breaks protocol, the presidency has two courses of action. The first is to act in situ at the time the events occur, calling to order and applying a sanction if applicable. The ordinance empowers the president to call to order if offensive words are uttered. If the deputy is repeatedly called to order, the situation can lead to the withdrawal of the floor, expulsion from the hemicycle, or even temporary exclusion. The second way is ex post and consists of noting controversial expressions without stopping the session and, subsequently, transferring them to the corresponding internal body for sanction evaluation, as we saw this Tuesday.

On this point, Costa is openly critical of the strategy ex post of the Parliament of Catalonia, as it considers that "it does not work to let someone speak and then try to sanction what they have said." For him, parliamentary debate requires that any inappropriate expression be corrected "immediately," through "a call to order or a withdrawal of the floor." The expert points out that often action is avoided "}in situ "for political reasons" and out of fear of generating "the stress effect", in which censoring a message ends up giving it even "more of a loudspeaker".

However, daily practice shows a change of era regarding current regulations. Ridao points out that "in other times when there were no far-right or right-wing populist phenomena, these possibilities had been used repeatedly." A loss of authority that recently experienced an extreme episode in Congress when a Vox deputy (and judge on leave) aggressively lunged at 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 lobbies, they include the obligation to maintain exemplary conduct. "An improper use of speech can trigger a guarantor verification procedure through the Commission on the Status of Deputies," explains Ridao, a permanent body that "listens to the parties and has the capacity to end up imposing 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 evident the multiple disciplinary powers that Parliament itself has to punish misconduct". We will see what the next one will be.