Five keys to the TC's ruling on Parliament

Spain’s Constitutional Court (TC) suspends breakaway plan, unanimously agrees to hear the parties before taking coercive measures

Ferran Casas
4 min
Carme Forcadell, a la foto en l’últim ple del Parlament, va ser escollida diputada i presidenta de la cambra després de presidir l’ANC.

MadridThe plenum of the Constitutional Court (TC) held a special session last Monday and opted for a middle of the road approach to the strong complaints made on Friday by the Spanish government, although it acknowledged that the Catalan parliament had disobeyed its ruling. The Court unanimously ruled to temporarily suspend the Committee on the Constituent Process' conclusions (the independence roadmap devised by Junts pel Sí and the CUP) and cautioned the leaders of the process -- Carles Puigdemont and his government, and Carme Forcadell and the Bureau of Parliament -- not to take any more steps in that direction, under threat of criminal prosecution.

Still, the TC gave Parliament twenty days to build a case for the approved resolutions, and the same timeframe to Forcadell to explain how —by tabling the vote— she did not disobey the ruling against the breakaway declaration of December 2015 --which has continued to unfold despite the prohibitions-- and the injunction that prohibited the debate. The TC, uneasy about its new role --unveiled last Monday-- of acting as a criminal court that enforces its own rulings, sought a balance that, without detracting from the heavy-handed approach demanded by the PP and supported by the court's conservative majority, would not endanger the unanimity with which they have been legally blocking the independence process so far.

In September the plenum of the top court will meet again to study the allegations of the parties involved --also those of the Prosecutor-- and make firm decisions on the breakaway roadmap and on the actions of the Parliament’s Speaker. Forcadell is now in the crosshairs by the Spanish government, although the latter realises to what extent coercive measures could fuel the independence process.

1. The roadmap

TC applies the law and suspends the resolution of the constituent process

Article 161.2 of the Constitution establishes that when Spain’s central government appeals against decisions by a regional government (or any of its organs, such as a regional Parliament), those decisions will be automatically suspended for five months, a period that can be extended up to when the court hands down a final ruling. There is no chance of an appeal for this under Spanish law. The Spanish government is aiming to annul the conclusions of the Study Committee for the Constituent Process approved on Wednesday last week by Junts pel Sí and the CUP. Faced with the possibility that the TC might not do so in the special session, the Spanish authorities requested a provisional suspension. As the request from the State Prosecutor was correct in every way, the plenary session agreed to it. This kind of measure is not reciprocal, however. If a regional government appeals against a national law, this remains in force, even though it might eventually be ruled as unconstitutional months or years later.

2. A time for pleadings

The Catalan parliament and the Prosecutor will have 20 days to tell their side of the story

Before annulling anything, the TC wants to hear each party out so that nobody may claim they were not allowed a proper defense. Faced with the request to declare the roadmap null and void, parliamentary lawyers —under Speaker Carme Forcadell and the pro-independence majority of her Bureau— and the Prosecutor's office (which reports to the central government) may, if they wish, submit written arguments for the judges to take into consideration before meeting again.

3. Forcadell may defend herself

An impeachment is still in the cards, but at least she will be able to put forward her arguments

Yesterday the Spanish government wanted the TC to press criminal charges against Carme Forcadell for disobedience, fining her or removing her from office -- in practical terms, an impeachment-- or to start court proceedings (deduction of testimony) to have her tried. The Court could have done so and, given the "constitutional significance" of the case, without hearing either of the parties. But the TC did not and went on to allow twenty days for the Bureau and the Speaker of the parliament to explain why they ignored the ruling that struck down the breakaway declaration of 9-N and the injunction that ordered them not to hold a debate on the Committee on the Constituent Process' conclusions. The State’s Counsel regards this as "criminal" behavior. Once Forcadell and Parliament have made their statements, the court will have to decide on what measures are to be taken. For now, TC sources yesterday reminded that they have not opened "criminal proceedings” yet. They are expected to do so later.

4. Threats if they do not stop

Rajoy pleased with the severe warning to Catalan government and Parliament

The Spanish government had requested the TC, faced with what it considers "a true secession plan", to warn Forcadell, the Bureau and Secretary General of the Parliament, as well as Carles Puigdemont and his cabinet that they must not take any further steps, either for deploying a declaration of sovereignty, statehood structures, or breakaway laws. The TC came through on this point and issued a "personal notification" to all of them with "the duty to impede or paralyze any initiative that attempts to ignore or avoid the agreed upon suspension". That is, they may not do anything related with the process approved by the chamber in accordance with the commitments of Junts pel Sí and the CUP. If they do so, says the resolution, they will have to face "potential liability, including criminal penalties”.

5. The Court presents a united front

The conservative judges chose a measured tone to gain the support of progressives

The internal split --and subsequent individual votes-- over the 2010 ruling on the Catalan Statute is the most traumatic chapter in recent history for the TC, a politicized and highly criticized court in Catalonia's view. It now has seven conservative magistrates (backed by the PP, one way or another) and four progressives (with the blessings of the PSOE). Maintaining unity is a priority for its president, José Francisco Pérez de los Cobos, who was still a card-carrying member of the PP after being appointed to the TC. The judges (two of whom, Encarna Roca and Juan Antonio Xiol, are Catalan -- both in the progressive minority) are aware of the impact of their rulings on the delicate political context, and have chosen to exercise caution in their actions. Rulings on the process have been soft in form but tough in substance, as the Spanish legal framework leaves no loopholes for the right to self-determination, nor does it recognize any other sovereignty than Spain’s. The magistrates do not like to act as a criminal court. But as time goes by, it seems, they have less say on the matter.

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