Does parliamentary immunity protect “24 hours a day”? Nope

What are the limits of the protection offered by parliamentary immunity? This is the question after the summoning of Martine Wonner before the disciplinary chamber of the regional council of the Order of physicians of the Grand Est on November 4. The former MP, who is against health measures during the Covid-19 crisis, is being defended freedom of expression for his parliamentary positions. He underlined this at the end of his hearing in front of about 200 people who had come in support: “All the accusations against me were defamed as a representative. When we are elected, we are elected 24 hours a day. No separation is possible. »

“Continuously as a parliamentarian, as a representative of the Nation I have tried to make the voice of citizens who do not understand why there are detentions, these restrictions, why they suddenly cannot go to their attending physician” , he also declared on Sud Radio Monday, November 7, 2022.

On air, he explained that he was “accused of telling the hemicycle that masks are useless, questioning the usefulness of PCR tests, their reliability”. And indicates the threat “very direct” of Olivier Véran “within the precincts of the National Assembly”, who will tell him that “you will see what you will bring when you are no longer a parliamentarian precisely because you will no longer be covered by parliamentary immunity “.

[Ce qui est inexact, Olivier Véran lui a dit le 24 février 2022 dans l’hémicycle, après que la députée a déclaré que le vaccin pouvait causer des « fausses couches », des « cancers multiples », « la maladie de Creutzfeld Jacob » ou « le sida », que : « Chacun ici est couvert par l’immunité parlementaire. […] Sometimes, the mandates stop one day and sometimes, those who keep making these comments are likely to be held accountable in court. I say this for Mrs Wonner. »]

It was in the name of “total” parliamentary immunity that Jean Lassalle also gave him his support in a letter, furious that he was criticized for the facts that took place “in the hemicycle or directly related to the activity that parliamentarian”.

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How does this parliamentary immunity work? Article 26 of the Constitution guarantees “total freedom of expression for parliamentarians in the exercise of their duties”, first underlined Jean-Eric Gicquel, professor of constitutional and parliamentary law at the University of Rennes-1.

“Immunity covers two things, explains Sophie de Cacqueray, lecturer in public law at the University of Aix-Marseille, what is called irresponsibility, which is intended to protect the freedom of order and which concerns to us here, and inviolability, which is intended to protect the implementation of the mandate against abusive legal proceedings. »

Liability “limited in its scope”

Impunity is protected by the provision of article 26, which states that “no member of Parliament may be prosecuted, tried, arrested, imprisoned or convicted in connection with the opinions or votes he gives in the exercise of his duties”.

If this impunity is “total”, meaning it covers “all axes related to the parliamentary function”, and “perpetual” – it remains even after the end of the mandate -, it is “limited to his domain” emphasizes Sophie de Cacqueray. “Opinions and votes must be related to the parliamentary function,” he continued. Comments made in the halls of the Assembly or outside the Assembly or in forums that may be published are not covered. »

These details are provided by article 41 of the freedom of the press law of 1881, amended by the ordinance of November 17, 1958: “Speeches delivered in the National Assembly or the Senate”, “the reports or any other documents printed of the order of one of these two gatherings”, as well as “the statements made or the writings made before an investigative commission”.

“Specific and defined” parliamentary duties

The extended interpretation of the use of the duties of the deputy “24 hours a day” is wrong, tell us two law professors. “On this account, there will be protection that will be absolute, says Jean-Eric Gicquel. You still need a limit, and the limit is in the performance of your duties. ” ” That would indicate that the representative is untouchable, but not that, abundantly Sophie de Cacqueray. She is protected in the performance of her duties in the National Assembly. From there, she is a citizen like everyone else and her freedom of expression exists, but is limited by a set of laws or rule, such as inciting hatred. “And added:” A disciplinary chamber of the Order of Physicians has the possibility to punish for a violation of the code of medical ethics. »

What is meant by performing functions? “The duties are precise and defined by article 24 of the Constitution: it is to legislate and control the action of the government, details the professor of parliamentary law. We conclude that the comments made during the legislative debate, during the audit review, during the review of public policy is covered, but comments made outside, during a meeting or on Twitter, are not. The parliamentarian is no longer acting within the framework of his duties , he will no longer be a legislator, he will no longer control the action of the government and, therefore, he will not benefit from the impunity of article 26 of the Constitution. . »

“Mrs. Wonner has never been criticized for her statements made in the hemicycle”

This is what the plaintiffs, a group of doctors, the NoFakeMed organization, and the National Council of the Order of Physicians (Cnom) argued when Martine Wonner was summoned. Statements broadcast on his Twitter account, where he presents himself as a psychiatrist, or held during public demonstrations are at the heart of the complaints, confirms us master Jean-François Segard, advisor for NoFakeMed collective, and not those held within the hemicycle.

“Ms. Wonner was never criticized for her statements made in the hemicycle, explained Jean-François Segard. The complaints refer only to statements made on social networks, in public, on media antennas and recorded in a bailiff’s report. »

Comments made on Twitter or during demonstrations

During the hearing, “a very precise parallel was made between the provisions of article 26 of the Constitution and the case law in its application regarding parliamentary immunity,” he pointed out. I said this in the plea: Mrs Wonner declared in the hemicycle that the masks were useless. We do not blame him, it is actually covered by parliamentary immunity. »

He was accused during the hearing of “false or scientifically unproven facts” such as the declaration, during a demonstration against the wearing of masks that “the virus does not kill more than another flu-like pandemic”, to broadcast on Twitter “care protocols” against Covid “without scientific basis” (in particular ivermectin or hydroxychloroquine) or to say that PCR tests gave false results.

The argument of parliamentary immunity has already been rejected in a previous case. For comments shared on Twitter and the conspiratorial documentary Just a moment about the Covid-19 pandemic, Alain Houpert, senator LR from Côte-d’Or and radiologist, was authorized. On November 4, 2022, the disciplinary chamber of the Order of Physicians of Burgundy Franche-Comté announced a ban on practicing medicine for a total of 18 months, nine of which were suspended due to “ethical faults”. In Grand-Est, the disciplinary chamber of the College of Physicians must rule on November 25 in relation to the complaints filed against Martine Wonner.

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