José María Brunet, Madrid, Iñaki Pardo Torregrosa, Barcelona
05/07/2019 15:20 Updated 05/07/2019 19:41
The Constitutional Court (TC) unanimously endorsed this week the application of 155 in Catalonia after the referendum of 1-O and has marked the doctrine and has established the limits for future applications, since it was the first time it was applied. In the ruling, which responds to the appeals of the Parliament and the confederal group of Unidos Podemos, it is determined that the 155 is an “exceptional” mechanism and a “last resort”, an instrument reserved for situations of extreme gravity and therefore not applicable in moments of specific conflicts.
In addition, it makes very clear that the period of validity of this measure in no case may be unlimited or indefinite or lead to the suspension of autonomy. It is emphasized that the application of said article should always be temporary. Both details are of special relevance, insofar as at various moments it has been found that the political debate on the right is still open about the application of 155 to Catalonia.
The 155 is “an exceptional remedy, subsidiary and temporary, and a means of last resort; therefore, it can only be used when there is a regional action that violates the Constitution, the Statute of Autonomy or other laws or seriously undermines the general interest of Spain”, says the high Court, which defines it as an” exceptional procedure” for facing “situations before which there are no other ways allowing compliance with the Constitution and the laws”. In addition, they point out that the limitation of autonomy “must be temporary” and that there is no need for “the suppression of autonomy or its indefinite suspension, since the purpose of intervention is simply to restore constitutional order”.
The importance of the sentence discussed and approved in the Constitutional Court is, in this sense, twofold. On the one hand, it approves practically everything that was done by the government of Rajoy as a reaction to the illegal referendum of 1-O, after the authorization of the Senate to apply said article. But at the same time, it establishes a series of criteria that undoubtedly should be taken into account if at some point an initiative is put back on the table to apply the 155 in order to suspend the management of an autonomous government.
The judges point out that the 155 is “an exceptional remedy, subsidiary and temporary, and a means of last resort”
In another point, which includes the framework of application of 155, the judges emphasize that the rule does not specify the measures that can be adopted, so they understand that the Government and the Senate are granted “a wide margin of appreciation with respect to which are those they consider necessary to apply “. And they allow those measures to be applied in “any of the organs or authorities of the autonomous community, provided that their actions are related to the reason for the application.
Thus, according to the ruling, the Executive becomes a “constitutional body guarantor of the integrity of the supreme norm of the legal order and the territorial configuration that derives from it” in order to restore constitutional order. Therefore, they understand that the Government can adopt “the necessary measures” and that the measures can also affect a regional chamber “as long as they do not imply their abolition or the indefinite suspension of the parliamentary activity”. Specifically, in the Catalan case, they understand that the Parliament “has not been totally unrelated to the facts that have triggered the application of the 155” and justifies the cessation of the Government and the top positions of the Catalan administration by having tried to stand aside from the current laws. For that reason, they understand that the Govern could not be “in charge of restoring constitutional and statutory legality”.
The judges of the TC only appreciate that the Constitution was breached when the official publications of the Govern and Parliament were deprived of legal effects without the authorization of the Government.
In the TC itself, special relevance is given to the fact that the sentence was approved unanimously, after a laborious deliberation process. The rapporteur of this first sentence, which resolves the appeal of Podemos, has been the vice president of the TC, Encarna Roca. The second ruling, for which Pedro González-Trevijano has been rapporteur, is the one corresponding with the appeal presented by the Parliament.
Among the judges there has been full awareness of the relevance of these judgments, as it is the first time to shed light on the nature and limits of the 155 of the Constitution. The constitutional instrument was there, but its concrete application to Catalonia, and the cyclical proposals and speculations – sometimes in the heat of electoral campaigns – about a possible re-edition of the measure, give the now-agreed ruling a practically historical dimension from the perspective of the constitutional right. For example, the debate on the dissolution of the Parliament was important. The appeals argued against it.
Regardless of what happens in the criminal sphere, the Constitutional ruling will undoubtedly give guidelines allowing to see clearly which are the limits a regional legislature cannot trespass, according to its powers. Within the Constitutional Court’s premises, it is highlighted the relevance of the precedent set by the recent resolution of the European Court of Human Rights (ECHR) in rejecting the claim presented by the ex-president Carles Puigdemont, the former president of Parliament Carme Forcadell and 74 other MPs against the annulment of the plenary session of October 9, 2017 in which it was planned to declare the independence of Catalonia.
The Court of Strasbourg affirmed in its ruling of May 30 that the suspension of the plenary agreed by the Constitutional was “necessary in a democratic society”. And this just to “maintain public safety, the defense of order and the protection of the rights and freedoms of minority parliamentarians”.