Democracy does not allow the violation by the majority of the rights of the minorities, even if it is a very big majority.
If the Plenary of the Parliament prevents the election of the person proposed by those who have the capacity and the right to do so, it is affecting the exercise of the rights of political representation recognized in article 23 of the Spanish Constitution
Those who hold a constitutional right have no obligation to negotiate their full exercise
Joan Coscubiela
05/16/2019 – 21: 03h
Once again the Parliament of Catalonia has experienced a situation of worrying democratic degradation. Once again, the parliamentary majority has violated the rights of the minority. In this case of the Socialist Group, which has seen how the election of Miquel Iceta as Senator was vetoed.
It is true that this scourge is not exclusive to the Catalan Chamber. During the previous legislature, the conservative majority of the Board of the Spanish Congress prevented the processing of parliamentary initiatives presented by the group of Unidas Podemos. To the point that the Constitutional Court has had to protect these constitutional rights, although it has done so when its exercise was no longer viable thanks to the dissolution of the Cortes.
The fact that this abuse of the majority is a shared scourge is not an excuse nor alleviates the problem. On the contrary, it aggravates it and highlights one of the weaknesses of our deteriorated democratic culture.
Democracy does not allow the violation by the majorities of the rights of minorities, no matter how big they are. Democracy is not just laws, but without the public authorities’ respect for the norms and rights that they recognize there is no democracy.
Beyond the political considerations on the actions of the groups that have voted against the designation of Iceta, what is more worrisome are the considerations put forward to justify it and the serious precedent that this entails.
Once again the role of legal norms in the functioning of institutions is ignored, which is the most direct path to their degradation.
The procedure of election of the regional senators has a clear and until now peaceful regulation. Article 174 of the Regulation of the Parliament of Catalonia establishes that it is the Board of the Parliament, in agreement with the Council of Spokespersons, which sets the number of senators that corresponds to each parliamentary group according to their representativeness.
In this sense, it can be said that the election of autonomic senators is done by awarding a quota to each parliamentary group. Based on this decision of the Board, the parliamentary groups with sufficient representation are the holders of the right to designate their senators.
The formal procedure of election goes through the ratification by the Plenary of the proposals of the parliamentary groups entitled to it. Thus, once the Board has awarded the number of senators that corresponds to each group, they designate their candidates. And from there, the President calls the Plenary session so that it ratifies the designation made by each group.
This ratification by the Plenary is a due legal act. Because those holding the right to appoint the regional senators are each group and the Plenary is limited to ratify that election. Against this legal logic cannot be claimed the sovereignty of Parliament, because this sovereignty has been exercised with the approval of the Regulation that establishes this election procedure and with the agreement of the Board that determines the distribution of senators corresponding to each group.
Except for reasons of ineligibility, which can only be legal – not of political opportunity – and which must be appreciated by the Board prior to making public the names of those appointed by each parliamentary group, the Plenary of Parliament cannot fail to ratify the proposals presented by the groups.
With these criteria, the regional senators have always been elected in Catalonia and in the rest of the legislative chambers. And this was done at the beginning of the current legislature. The Board agreed that two senators corresponded to the groups of Citizens, Junts per Catalunya and ERC and a senator to the Socialist Group and CatEnComú-Podem.
The replacement of senators for any of the foreseen causes, in this case resignation, is also clearly accounted for in the Regulation. It is up to the parliamentary group to which the replaced senator belongs to make the proposal of the person elected to replace her (art 174.4). And to the Plenary the ratification, which is, I insist, a due ratification, not optional. Above all, if there is no legal reason and only partisan policy criteria to deny ratification.
It is evident that the Plenary cannot choose another person than the one selected by the parliamentary group holding this right. Not another person from another group, of course, nor another person from the proponent group, because that would mean stealing its right from the group that holds it. And that’s what happens when you veto the election of a candidate proposed by the only ones who can propose him, its parliamentary group. If this absurd interpretation were made, the result would be that a right held by each parliamentary group would become a right that should be shared by the whole of the Plenary. And only in those cases in which the majority so decided according to their interests.
If the Plenary of Parliament prevents the election of the person proposed by whom has the capacity and the right to do so, it is affecting the exercise of the rights of political representation recognized in Article 23 of the Spanish Constitution. By the way, those rights of the parliamentary group as well as of their constituents. And if the final result were that the group that has the right to appoint a senator is left without that representation, one of the basic principles of our constitutional order, political pluralism, would also be affected.
This right to political representation cannot be limited by any “sovereign” decision of the Plenary of Parliament, unless it is considered that the majorities can do everything, including preventing the exercise of the rights of minorities.
It is not, as has been argued, any norm of parliamentary courtesy, nor a matter of good manners, nor of good predisposition, nor of political negotiations. Those who hold a constitutional right have no obligation to negotiate its full exercise.
Making another interpretation of the Regulation would lead us to the absurdity that the majorities could, from the “sovereign” decision of the Parliament, deprive of senators the minority groups in the Catalan Chamber.
In political terms it can be understood that the pro-independence groups want to express their opposition, discomfort, disgust or anger at the behavior of other political forces. From this point of view everything is debatable.
But what they cannot do – whatever they have wanted to do: express outrage, mark territory or profile, show their pride in front of adversaries or competing partners – is to violate the constitutional rights recognized to other groups.
Unfortunately, what has happened is not an anecdote. In the imaginary of Catalan politics the perverse idea has been installed that the majority can do everything. It was applied by the pro-independence majority in the nefarious Plenary of 6 and 7 September 2017 and since a thick veil has been spread over it, without drawing conclusions from it, relapse has become inevitable and there is a risk of turning it into habitual.
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