Freedom of expresion and free exercise of political representation. The withdrawal of words from the Sessional Diary as a sanction of admonition Commentary on Constitutional Court Judgment 25/2023, of April 17, concerning the Appeal for legal protection num. 4194-2023. (BOE num 121, of May 22, 2023)

Abstract

The Judgment constitutes the first pronouncement of the Constitutional Court in relation to the power of the Presidency of the Chamber to withdraw disorderly or unparliamentary remarks from the Congressional Record, as a limit to the right of political participation ( ius in officium, article 23.2 of the Constitution). Constitutional judgment is possible within an important self-restraint: a liminal control over manifestly unreasonable and discriminatory arbitrariness. The Court requests the contribution of precedents
in which the same presidency had overlooked or consented without any reproach, expressions of equal character to the controversial one. Since the concept of decorum depends on the free assessment of the Presidency, strict scrutiny is ruled out (principle of proportionality). The legal nature of the contested measure is also ruled out as a sanctioning measure, which would have been more in line with its systematic location, historical parliamentary law and comparative law, as well as with its practice: a reprimand, as a
judgment of reproach, which appears in writing and sine die in the Journal of Sessions and therefore harmful to the right to honor (art. 18.1 CE) base of the concept of decorum, a fundamental right that the Judgment does not mention at all.