If the employee of a large company makes a discriminatory statement, they typically face disciplinary consequences. Yet politicians not only have the freedom to make such statements, but can even be rewarded at the ballot box for doing so. Drawing on recent cases in Brazil and the UK, Javier García Oliva and Rafael Valim ask whether there is a role for the law in ensuring politicians maintain standards of behaviour in relation to issues like gender equality.

As we live in a global marketplace, in terms of both commerce and ideas, undoubtedly, in the main, organisations wishing to flourish in the international arena aim to ensure that their representatives are not seen to infringe principles of human rights and equality considered normative in the liberal democratic world. Supporting child labour, the exploitation of female workers or making discriminatory statements will lead to collective and individual repercussions, business agreements will be terminated and errant employees will face sanctions. Even workers towards the bottom of the food-chain in large companies are well aware that unacceptable comments or behaviour will have consequences, up to and including dismissal.

In sharp contrast, actors on the political stage at times publicly express views which would lead to disciplinary action for a young person working their first job flipping burgers, and yet manage to do so with apparent impunity. Is this a problem which legal regulation ought to do more to address, or should the judgement of the electorate suffice, in preference to jeopardising freedom of expression in society and stifling debate? As is ordinarily the case with complex questions, the answer is not black and white. Whether the law should intervene, and at what level, must depend on the nature of the infraction and what is at stake.

At one polar extreme, there are times when international law may be an appropriate instrument to bring to bear. The now President of Brazil, Jair Bolsonaro, stood on a deliberately provocative “anti-political correctness” ticket, and instead of expressing embarrassment about sexist, homophobic, racist and environmentally destructive views, he openly embraces them as part of his vision for his country. Backed by economic elites and evangelical churches, his attitudes have garnered popularity, rather than shame, in some quarters. Not all of his pronouncements even have a fig-leaf of ideological basis to justify them as free expressions of a political belief, given he is quite content to launch abusive ad hominem attacks.

Jair Bolsonaro, Credit: Palácio do Planalto (CC BY 2.0)

Making a case that males and females are fundamentally different, with women belonging exclusively in the domestic sphere, may be unpalatable to mainstream observers, but it is at least a coherent position for some religious conservatives. However, there is a huge difference between such an approach and mocking the President of another country for being married to a woman who happens to be older than himself. It is very difficult to link such behaviour to any coherent thought, aside from a primal assertion of a superior claim to alpha male status, on the basis of having a younger and (subjectively speaking) more attractive wife. Consigning women to the role of status symbols, whose worth is dependent upon a culturally determined evaluation of physical beauty is not only deeply insulting to Brigitte Macron, it is demeaning more than half of the world’s population.

But this is almost a distraction from the real issue, which may necessitate international law addressing the Brazilian context. The underlying motivation for the attack on the French President’s spouse stemmed from Emmanuel Macron’s plea for action on the devasting Amazonian fires, and his call for a global response to a catastrophe with universal consequences. Bolsonaro accused Macron of having a colonial mentality in regard to his country, and it would be hard to overstate the tragic irony of this contention, given Bolsonaro has likened indigenous people to animals in zoos, and expressed a desire to “wipe them out”. The plight of men, women and children living in the Amazon alone is reason enough for the international community to bring pressure to bear on Brazil under its present regime, and not simply turn away on the basis that sovereign states may manage their own internal affairs. Democracy is not, in and of itself, a guarantee of protection for minorities, in light of the ever-present potential for the tyranny of the majority to enable horrendous human rights abuses.

The role of international law in such extreme cases, however, does not mean that less dramatic events should be entirely overlooked. Should domestic legal frameworks do more to bring politicians to account for lapses in expected standards of behaviour? Caroline Lucas, the Green Party MP, recently called for an all-female cabinet in Britain to handle the Brexit crisis. The suggestion that the capacity to deal with a political situation could be gender dependent, is shocking in the twenty-first century.

The underlying logic of characterising men as inherently confrontational and aggressive, whilst assuming that women are instinctively collaborative and cooperative, is endorsing a binary and distorted vision of humankind. If a company director were to attempt to insist that only men, or only women, were eligible to work on a particular project (independent of some objective justification e.g. that the role involved providing services to female victims of domestic violence), this would be clearly unlawful in England and Wales, and would quite properly give rise to discrimination claims. It is acceptable, therefore, that politicians may make such comments without consequence?

Firstly, it would be unfair to suggest that there are no formal standards which apply. The Code of Conduct for MPs, does take cognisance of equality, and in particular III (5) requires that: “Members have a duty to uphold the law, including the general law against discrimination”. As a result, Caroline Lucas could in theory be investigated by the Parliamentary Commissioner for Standards. Nevertheless, in an instance like this, it would be difficult to justify disciplining a member of the House of Commons for expressing what was a sincere opinion as part of a wider discussion. In other words, when taken in context, it does not appear that the comment went far enough to infringe the Code. Were putting forward perspectives which might be regarded as controversial sufficient to invariably trigger disciplinary action, freedom of expression would be fatally undermined, and minority opinions would be disenfranchised from the entire democratic process.

This is not to imply, of course, that there should never be a legally punitive response for comments made by political figures, just because they fall short of the gross human rights infractions perpetrated by figures like Bolsonaro. A deluge of wrong in one context does not ameliorate a steady drip in another. When politicians make statements outside of Parliament which cross the border into criminal hate speech, there is no reason why they should be any more shielded than any other citizen, and a person’s freedom of expression is no more or less sacred because they hold or aspire to public office. However, returning to the work analogy, most people who make casual discriminatory remarks in a professional setting do not face criminal consequences, and they will instead be likely to find themselves in trouble with their bosses or clients.

Politicians are ultimately accountable to the electorate whom they represent. At one level the proper response is political, rather than legal. Individuals who make offensive comments can expect to be publicly called out on them, and may well lose votes at the ballot-box. Yet this does not mean that the law has no relevance, even if its teeth are not called upon to bite. The principles which we enshrine in our equality law, and are generally compelled to abide by ordinary citizens at work, should inform our expectations of what is normative and acceptable. In other words, they provide boundaries, and if politicians flagrantly step beyond them, there is good reason for others to ask for some justification for the same. If we all want to live in an open, tolerant and just society, we are collectively responsible for addressing oppression, intolerance and injustice from those in positions of influence.

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Note: This article gives the views of the authors, not the position of EUROPP – European Politics and Policy or the London School of Economics.

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About the authors

Javier García Oliva – University of Manchester
Javier García Oliva is a Senior Lecturer in Law at the University of Manchester.

Rafael Valim – Lawfare Institute
Rafael Valim is a Solicitor and Founder of the Lawfare Institute.

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