Spain’s Constitutional Court allows debate but readies harsh ruling

On Thursday evening the judges of Spain’s Constitutional Court (TC, in Spanish) unanimously voted against issuing an injunction banning the Catalan parliament’s plenary session scheduled for next Monday to debate --and likely pass-- the motion filed by Junts pel Sí (Together For Yes) and the CUP that would signal the start of Catalonia’s breakaway process with a view to becoming an independent republic.

The eleven judges merely agreed to hear the appeals filed by Ciudadanos, the PSC and the PP against the Speaker of the Catalan chamber and the agreements of the board of party speakers allowing a plenary session to be called without a legal opinion on the draft text and before the PP MPs had formally decided to set up their parliamentary group, which they did on Thursday. Their complaints will be examined later on, but it doesn’t seem as if further relevant measures will be taken following the deliberation, besides an inconsequential rap in the knuckles for Carme Forcadell, the Speaker of the Catalan parliament.

The high court’s decision to dismiss any cautionary measures is a setback for Ciudadanos, the party that initially promoted the idea of stopping the debate, and for the PP, who joined them in an attempt to elbow their way into the leadership of the conservative unionist bloc in Catalonia. The PSC and its leader, Miquel Iceta, showed more cunning by simply filing a complaint against Speaker Carme Forcadell, without requesting the suspension of the plenary session.

Nevertheless, the writs issued on Thursday --one in response to the PP and the other to the request from Ciudadanos-- suggest a harsh, unequivocal ruling is in the works, once the resolution is approved and appealed against. In fact, Spanish president Mariano Rajoy and his government would rather the PP had not joined Ciudadanos in the latter’s application for an injunction, which was bound to be dismissed considering the existing precedents and the court’s efforts to tread carefully so as to keep reaching unanimous decisions.

PP’s Albiol denies loss of face

In a meeting of the party’s national executive board on Thursday evening, as the TC was finalising their writ, Rajoy insisted that Catalan secession will be stopped and that the State “has the resources to halt it” and that he would keep in touch with the forces that remain loyal to the Spanish constitution. And he slipped a sentence slamming the Catalan PP and its leader, Xavier García Albiol, for tagging along with Ciudadanos: “my government will only file an appeal once we are certain to win it”, he said. And when would that be? On Wednesday Rajoy mentioned that they will do so on Tuesday or Wednesday next week, once the Catalan parliament has convened to approve the declaration. The Spanish state’s legal office has already drafted the document. Unlike what has happened with the injunction --and perhaps with the complaint against Forcadell--, there is no doubt in and outside the TC that the appeal lodged against the motion passed by Together For Yes and the CUP will be upheld unanimously. Albiol tried to spin Rajoy and the Spanish vice president’s words a few days earlier --which hinted at their disapproval of the injunction he had applied for-- by claiming that they were aimed at “the government rather than the party” and he denied any loss of face as a result.

So what are the TC’s reasons for dismissing any cautionary measures? It argues that it cannot “condition the political debate” and that no preemptive complaint can be filed against legislation or motions before they have been passed by lawmakers. As a matter of fact, the Spanish TC dismissed the PP’s appeal against the so-called Ibarretxe Plan (1), which included a consultation and was passed by the Basque parliament. It also denied the injunction requested in 2005 by Spain’s PP MPs who sought to stop the reform of Catalonia’s Statute, a draft text which they deemed unconstitutional at the time. In both instances, the right of both parliaments to hold a political debate prevailed, even if later on the TC struck them down: the Ibarretxe Plan after being passed by the Basque parliament and the new Catalan Statute after it was voted in the Spanish chambers and in a referendum in Catalonia. This time it will be no exception, more so given that the motion which the new 135 Catalan MPs will debate and vote on Monday includes an explicit intent to disregard any rulings by the TC.

The judges are aware of the “risk”

Naturally, it was legal arguments and precedents that tipped the balance against the appeals filed by the PP and Ciudadanos, but also the political will to preserve the court’s unanimity, which received a major blow as an institution following the debate on the Catalan Statute, when the TC was seen as a divided, politically biased court which took four years to come to an agreement on what to do about the law that Catalans had voted in a referendum. On Thursday a split was averted, even though some of the conservative judges leaned towards granting cautionary measures (the writ states that the court is aware of the “risk” that the motion entails and reminds the Catalan parliament of its powers and duties).

After the debate, the TC proceeded as expected and exercised caution to ensure that the Catalan resolution would not die against a background picture of a divided TC that banned the parliamentary debate. Instead, the TC chose to aim for a snapshot of a unanimous ruling against the motion, once it has been passed, as hinted on Thursday. The judges warned that they will act “with prudence and determination”. And they noted that, even if the motion is passed, they will have time to halt it and avert its practical application. Of course, that is contingent on the Catalan parliament and government actually obeying the TC’s ruling.

Catalonia’s own Treasury remains suspended

Five months ago Rajoy’s government appealed against Catalan legislation setting up a separate Treasury and appointing a commissioner for the National Transition. As a result of the privileges granted to the Spanish central government, both were automatically suspended, even though there is no ruling on either issue yet. The TC still needs to examine the case and on Thursday it simply agreed to extend the suspension, given “the great constitutional relevance” of the matter.

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(1) N.T. In 2003, then Basque president Ibarretxe announced a plan whereby the Basque Country would demand a status within Spain akin to that of Puerto Rico in the US.