The Inter-Parliamentary Union (IPU) has published a handbook on freedom of expression for parliamentarians with its Secretary General, Mr. Martin Chungong, calling on Parliaments around the world to “make full use of the tools at their disposal” to understand and defend the fundamental right to freedom of expression.
Titled “Freedom of Expression for Parliaments and their Members: Importance and Scope of Protection”, the 140-page manual was written by Toby Mendel, an international expert on freedom of expression law and Executive Director of the Center for Law and Democracy (CLD) based in Canada.
The overall aim of the handbook is to help parliamentarians better understand international standards on freedom of expression, to enable them to promote the standards in their work, particularly through their legislative activities, and to help ensure that they can themselves enjoy to the full the extensive freedom of expression rights that they enjoy in most countries.
It is thereby expected that both objectives would help to improve democracy, and overall respect not only for freedom of expression but also for all other rights.
Mr. Mendel states in the manual that: “There is probably no group in society for whom free speech is more important than parliamentarians. Not only does it underpin the very essence of their work – most firmly represented in the public mind by their giving speeches in parliament – but that work is itself an absolute bedrock of democracy and the protection of human rights, including freedom of expression. Put differently, if parliamentarians’ right to freedom of expression is not respected, democracy and indeed all human rights are very much at risk.”
According to him, “Freedom of expression is, first and foremost, a legal right. This is hardwired into international guarantees, which require any restrictions to be ‘provided by law’. As the guardians of law-making processes, parliamentarians have a special responsibility to make sure that laws conform to international standards in this area. This applies to the rules both relating to restrictions and involving measures to create a positive enabling environment for freedom of expression.”
Mr. Mendel stressed that a key part of ensuring that laws conform to international standards, which flow from the requirement that any restriction on freedom of expression should be ‘provided by law’ is that “legislation should neither be unduly vague nor allocate too much discretion to officials in deciding how to apply it.”
Explaining the structure of the manual, the author said Part I of the handbook is designed to give parliamentarians an understanding of the main standards governing freedom of expression under international law.
Chapter 1 starts by outlining “core standards”, including describing international guarantees, highlighting the reasons freedom of expression is important, presenting the main characteristics of the right, and outlining key principles for freedom of expression during elections.
Chapter 2 addresses the issue of restrictions on freedom of expression with the first section focusing on general rules governing restrictions and, in particular, the three-part test for restrictions under international law. The second section focuses on a number of specific interests that restrictions seek to protect, such as national security, privacy, reputation, public order, equality (hate speech) and the administration of justice.
The handbook moves on, in Chapter 3, to address the issue of media regulation with the early sections focusing on general issues such as ensuring that regulatory bodies are independent, and the need to foster diversity in the media, while the following sections focus on different media sectors: journalists, print media, broadcast media, public service media and online media.
Mr. Mendel said although ensuring that legislation is in line with international standards may stand out as the leading role for parliamentarians in terms of protecting freedom of expression, it is by no means the only one.
According to him, Parliamentarians also exercise important oversight roles in relation to both the executive and other powerful social actors. Part of this is ensuring that legislation is implemented properly, that is in the manner intended by parliament.
He said: “As social leaders, parliamentarians have a duty to strike the right balance when exercising their own right to freedom of expression. This means, on the one hand, engaging in robust debate in parliament, and more widely to discharge their parliamentary mandates, including by holding others to account and by criticizing inappropriate behaviour. But it also brings with it certain responsibilities to respect freedom of expression. Just because parliamentarians enjoy special, almost unlimited, protection for freedom of expression within parliament does not mean that they should use that power irresponsibly.”
Mr. Mendel noted that “It is never appropriate, for example, to make explicitly racist comments or knowingly to tell lies. Parliament is also, under international law and often under national law, required to operate transparently, including by publishing information proactively and by responding to requests for information from individuals.”
The issues are the subject of Chapter 4 of the manual, which focuses on the promotion and protection of freedom of expression.
He observed that “A key issue for parliamentarians is precisely what special protections they enjoy in terms of freedom of expression. The doctrine of parliamentary non-accountability essentially protects parliamentarians against legal censure for what they say in parliament and sometimes beyond this, while the doctrine of inviolability grants parliamentarians certain additional protections.”
Chapter 5 analyses in detail the precise scope of the protections for free speech.
Mr. Mendel said “Despite these protections, parliaments retain the power to censure parliamentarians who abuse their right to freedom of expression to the detriment of parliament itself, as part of the broader doctrine of parliamentary immunity. “
Chapter 5 also looks at the power of parliaments to regulate free speech rights, in particular of their members while Chapter 6, which is the last in the handbook, looks at a number of practical issues on freedom of expression and parliamentarians, such as the importance of parliaments ensuring that systems are in place to ensure appropriate media access to parliament; putting in place accreditation processes for the media which are fair and transparent; and promoting live broadcasting and online streaming of parliament, including committee meetings as far as possible.
According to Mr. Mendel, “It is important for individual parliamentarians to cultivate good relations with the media so as to help them get their messages out to the public, even if this can sometimes be frustrating due to perceptions that the media tend to sensationalize events or only report negative news. The spread of social media is starting to change this relationship, and to give parliamentarians tools they can control directly to reach out to the wider public.”
He said: “Parliamentarians also need to cultivate good relations with officials and political parties. In particular, they should respect the obligation of civil servants to remain politically impartial and to do their jobs in a professional, unbiased manner. Political parties have come to wield an enormous amount of power in parliaments. While this is to some extent inevitable, and has many positive aspects, if the law and practice goes too far it can undermine the independence of parliamentarians and their ability to represent the electorate and remain true to their own consciences.”
In the Foreword to the manual, IPU Secretary General Martin Chungong said: “Freedom of expression takes on special significance for parliamentarians. It allows them to connect with citizens, raise their concerns and denounce possible abuses. It is crucial that parliamentarians can do this unhampered and without fear of reprisals. The case load of the IPU Committee on the Human Rights of Parliamentarians shows, however, that across the world many parliamentarians are at risk for exercising their freedom of expression. It is our collective responsibility to ensure that they, as well as others who rely on freedom of expression, such as the media and civil society, can conduct their work safely and unhindered.”
The manual is available in English, French and Spanish.