A Parliament may debate and pass resolutions on any subject, except if it intends to bypass the law and if its members are expressly banned from doing so by the Constitutional Court. On Monday, Catalonia's High Court issued its verdict on the members of the 2017 Catalan Parliament's bureau, who stood accused of disobedience. Former vice-presidents of the Parliament Lluís Corominas and Lluís Guinó, former first secretary Anna Simó and former fourth secretary Ramona Barrufet have been barred from office for twenty months for disobeying the Constitutional Court and processing the so-called disconnection laws, intended to create a separate state. They also face a 30,000-euro fine. All but Guinó, who is still a Member of Parliament, have taken a step back from the political front line.
In contrast, the court has acquitted then far left MP Mireia Boya. The judges have taken into account that she did not personally receive any warnings from the Constitutional Court, unlike the other members of the bureau.
The main issue at stake was what Parliament could and could not do at one of the high points of the independence bid, the plenary sessions on 6 and 7 September 2017. The pro-independence members of the bureau decided at that time to process the disconnection laws and hold the relevant debates despite repeated written warnings from the Constitutional Court. During the trial, one after another, they denied having disobeyed, arguing that as members of the bureau they could not veto any initiatives, constitutional or otherwise, since they had to "protect" the rights of MPs to present them. "Neither I nor any member of the bureau had any intention of disregarding the Constitutional Court," Barrufet said.
Shortly after the sentence was made public, the current Parliament's speaker, Roger Torrent, criticized it as a "new attack on parliamentarianism and freedom of expression". "Debating, speaking and discussing any subject in parliament freely is not a crime, it is a right," he said on Twitter.
A new attack on parliamentarianism and freedom of expression. Debating, talking and discussing freely any issue in your parliament is not a crime, it is a right. All the support, companies and firms! https://t.co/ezu9Px3jp7- Roger Torrent 🎗 (@rogertorrent) October 19, 2020
The limits of inviolability
The ruling explains that the inviolability of MPs to debate and express themselves freely has limits, which are exceeded when MPs "act outside the exercise of their powers or functions". In this sense, the court believes that the action of an MP can never have as its goal "non-compliance with the law, in particular the Constitution, or with court rulings".
During the trial, the prosecution argued that during the autumn of 2017 there was "a strategy designed" to "fracture the constitutional order" in favour of independence that had three pillars: the Catalan government, pro-independence associations and the Catalan parliament. For him, the members of the bureau were the "epicentre" of this strategy.
The court agreed that the accused "systematically encouraged" the parliamentary processing of several initiatives that exceeded the limits of their actions as MPs, because they were illegal, and at the same time they "systematically" rejected the "well-founded" claims and objections of opposition parties.
When arguing this thesis, however, the judges tried to avoid the accusation that this was a "political cause" by making it clear that the reason for the conviction was not that the actions pursued independence but that their goal was outside the law. In fact, the sentence underlines that MPs' actions being questioned does not imply that the "autonomy" of any parliament to debate what it thinks is limited as long as it stays within the law.
Nevertheless, the sentence - except in Boya's case - is the same as that proposed by the Public Prosecutor's Office and the State's legal counsel: 20 months' bar from office for disobedience that the members of the court assure "can be qualified, without discussion, as manifestly stubborn, defiant and persistent".
The role of lawyers
One of the key witnesses highlighted in the judgement is the Parliament's lawyers, who played a leading role during the trial. The senior lawyer at the time of the events, Antoni Bayona and the Secretary General of the Parliament, Xavi Muro, argued that the Parliament's Bureau should have stopped the debates. Muro, for example, said that the Bureau may not admit certain initiatives if they are "patently unconstitutional". Yet the lawyers were helpful to the defence on other points. Both claimed that the basic problem is that, from 2015 and as the Catalan independence bid progressed, the Constitutional Court introduced a change of doctrine and hardened its discourse against the Catalan Parliament. This change was detrimental to the MPs on trial.
Refusal to be a "censorship body"
The line of action established during her mandate (2015-2017) by the then speaker, Carme Forcadell, was that the Parliament could not limit MPs' freedom of expression and, therefore, could not act as a "censor" of parliamentary initiatives. According to Forcadell, stopping the processing of the disconnection laws would have been an attack the roots of parliamentarianism. The former speaker was sentenced by the Supreme Court to 11 years and six months in prison for the crime of sedition, due to her participation in the 2017 independence referendum.