A Parliament may debate and pass motions on any subject, provided there is no intent to break the law and members haven’t been expressly warned against it by the Constitutional Court. That is what is stated in the ruling handed down by Catalonia’s High Court of Justice in the case of the members of the 2017 Catalan Parliament Bureau [who agreed to table a bill paving the way for the 1 October independence referendum] who were convicted for disobedience on Monday. The court has ruled that the Catalan MPs who were serving on the Bureau in the autumn of 2017 (Lluís Corominas, Lluís Guinó, Anna Simó and Ramona Barrufet) disobeyed the Constitutional Court’s instructions when they allowed the pro-independence parties to table a bill ahead of the October independence bid, and has barred them from holding public office for twenty months. In addition, they will each have to pay a €30,000 fine. None of them but Guinó —who is still an MP— are currently active in politics.
In contrast, the court has exonerated Mireia Boya, who was a CUP lawmaker at the time. The judges have ruled that Boya had not been individually warned by the Constitutional Court, unlike the other defendants, and that all she did was to exercise her right to table legislation. The key issue in the trial was to establish what powers the Parliament Bureau had during the plenary session held on September 6th and 7th. Its pro-independence members agreed to allow their parties to table and debate legislation that paved the way for independence, even though they had been formally and repeatedly warned not to do so by the Constitutional Court. During the trial all the defendants were adamant that they hadn’t disobeyed the Constitutional Court, arguing that the Bureau was not allowed to veto any legislation tabled by the parties, even if it violated the Constitution, because the Bureau’s duty is to “protect” the rights of lawmakers to table and debate bills. Barrufet declared that “none of us had any intention to ignore the Constitutional Court”.
However, Monday’s High Court ruling disregards this claim and endorses the arguments of the Prosecutor: the members of the Bureau should have prevented the debate [on 6th and 7th September 2017] because the motions and legislation tabled on that occasion intended to “breach” Spain’s constitutional order and they had been warned about it. The ruling states that they committed a crime of disobedience because “for two years they blatantly disregarded the instructions issued by the Constitutional Court”.
“There can be no doubt that, in September and October 2017, the defendants intended to ignore, disregard and breach the instructions and orders issued by the Constitutional Court with a view to passing new legislation that would allow Catalonia to become an independent republic”, the judgement states.
The limits of parliamentary immunity
The ruling explains that members of parliament are at liberty to debate and voice their views, provided they “do not act beyond the powers and functions bestowed on them”. The judgement states that parliamentary immunity does not protect actions “that seek to contravene the law, the Constitution or a court’s judgement”. The High Court argues that excluding such actions “does not jeopardise a lawmaker’s autonomy, nor does it compromise a representative’s right to engage in political action”, as this prerogative “cannot be used” as an argument in a regional parliament “to breach the constitutional order”. The High Court agrees with the Prosecution that —overstepping their powers— the defendants “systematically allowed” several bills to be tabled even though they were unlawful, whilst also “systematically” disregarding the objections and complaints lodged by the opposition.
In an attempt to deflect the accusation that the case was “political” in nature, the High Court claims that the members of the Parliament Bureau “have not been indicted over their political views. The fact that they support Catalan independence is perfectly compatible with our legislation and irrelevant as far as the criminal code is concerned”, the ruling states. However, it goes on to say that such views should be furthered by means of a constitutional reform. Otherwise it might lead to a punishable offence if the warnings from the Constitutional Court are not heeded.
Except in Boya’s case, the High Court has imposed the same penalty that the Prosecutor and the State Attorney were aiming for: a 20 month disqualification for a crime of disobedience, which the court characterises “as unarguably repeated, obstinate, recalcitrant and persistent”.
The weight of the court statements by the opposition and the Parliament’s legal service
Monday’s ruling highlights the fact that the testimony of the Parliament’s lawyers played a key role in court. The chief legal advisor at the time, Antoni Bayona, and the chamber’s secretary general, Xavi Muro, both stated that the Bureau shouldn’t have allowed the [September 2017] debates and fully endorsed the arguments of the Prosecutor. Bayona no longer leads the Catalan Parliament’s legal service. Muro, for instance, stated that the Bureau cannot allow legislation to be tabled if it is “blatantly unconstitutional”. However, both Bayona and Muro also provided some respite for the defendants when they stated that the underlying problem was to be found in the Constitutional Court’s new hard-line doctrine against the Catalan Parliament, which began in 2015 as Catalonia was readying the 2017 independence bid. This change of doctrine proved detrimental to the defendants.
The difference with Carme Forcadell
The penalty imposed on the Parliament Bureau last Monday by the High Court is in contrast with the crimes Speaker Carme Forcadell was convicted of, even though the events were the same: the 2017 Speaker was not charged with disobedience but was sentenced to 11 years and six months in prison for a crime of sedition. Forcadell had the same powers as Corominas, Barrufet, Guinó and Simó and she didn’t cast a deciding vote at any time, yet the Supreme Court ruled that hers was a leading role.
Former Bureau member Joan Josep Nuet is in a different situation altogether. The former Podemos member is now an ERC MP in the Spanish Parliament. When he was serving on the Bureau in 2017 he voted to allow the referendum bill to be discussed in the chamber, but when he became a lawmaker in the Spanish Parliament his case was transferred to the Supreme Court.