CATALONIA
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.
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