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January 26, 2018

Destroying the constitution in order to save it

It has become clear over the past years that the only tool the Spanish government is willing and perhaps able to use in response to the Catalan separatist is the judiciary. Mariano Rajoy may have hoped that the hastily called regional elections last month would return a Catalan parliament without a separatist majority, but it was a toss-up and Rajoy lost the bet. Now, in their desperation to prevent Carles Puigdemont from being reappointed regional premier next week, the Spanish government is resorting to every trick in the book. And constitutional law experts are aghast at the stretches to which the Spanish government is taking the constitution.

The situation is this: the speaker of the Catalan parliament has proposed Puigdemont as the candidate for regional PM. The unionist opposition and the Spanish government argue that this is not possible because Puigdemont is not physically in Spain and cannot take part in his own investiture debate remotely or by delegation. The legal counsel of the Catalan parliament agrees. But the investiture session would take place next week, and who knows where Puigdemont could be then? Maybe he will sneak into the parliament (and the Spanish police has been inspecting the sewers in the Ciutadella park where the Catalan parliament is located to ensure he won't get in through them - yes, really). He could also get arrested at the border in which case he would presumably be jailed immediately, but he could petition the judge to be able to attend the session. There is precedent in Spain of jailed politicians being allowed to attend sessions of regional parliaments. Supreme court judge Pablo Llarena actually used this argument to refuse issuing an European arrest warrant when Puigdemont went to Copenhagen this week. To him, Puigdemont wanted to be arrested so that it could not be said that he was away from the parliament voluntarily. But if Llarena is right, Puigdemont is in a win-win situation. Either he is not arrested and he appears in the parliament, or he is arrested and he can allege force majeure so the separatist board of the parliament can allow him to delegate the delivery of his speech, and his vote. Puigdemont's lawyers said this week that there is a chance that he will be present at the debate.

So, smelling defeat - or, worse, embarrassment - the high-powered state lawyers colonising Rajoy's cabinet, starting with the deputy PM Soraya Sáenz de Santamaría who has been in charge of the Catalan dossier for years, have pulled out the last trick in the book. Article 161.2 of the Spanish constitution foresees that, if the government challenges an act of a regional authority before the constitutional court, the court will immediately suspend the act, and has five months to rule on the substance. While this is not in itself objectionable, the problem here is that every constitutional expert in the land agrees that the specific challenge stands no chance. The Spanish government, with the political support of PSOE and Ciudadanos, decided to challenge the nomination of Puigdemont, and asked the consultative council of state to issue an opinion on this. The opinion came back yesterday, and is negative. The council of state argues that the investiture of Puigdemont can only be unconstitutional if he attempts to take part in it without being physically present at the Catalan parliament, which is something that cannot be decided until after the deed is done, and not pre-emptively. But the Spanish government is unfazed, will ignore this opinion, and will use Art 161 to its advantage. 

Spain's constitutional experts are flabbergasted, and call this a "constitutional fraud"according to El Independiente. El Mundo calls, in an editorial, on the government to listen to the council of state. One of the arguments giving the unionists the high ground in this whole mess used to be that in September the separatist board of the Catalan parliament - now indicted as a result of their actions - repeatedly ignored both the regional parliament's legal counsel and the region's council of statutory guarantees (a sort of regional constitutional court). Now the Spanish government is throwing that out the window, and straining the constitution beyond the breaking point not for the first time. 

The only way the Spanish constitutional court can save itself from destruction by Mariano Rajoy's minions is to rule on this case as soon as possible, and not wait five months.