The Constitutional Court will debate this Tuesday with two contradictory reports on the table the government’s appeal against the decision of the Catalan Parliament to admit for processing the Popular Legislative Initiative (ILP) to start a new process towards independence for Catalonia. One of the reports suggests that the challenge of the Executive should be dismissed, which would mean that there would be no suspension of the initiative, which would continue its course with the collection of signatures from citizens who support it. In contrast, the second opinion argues that the government’s appeal should succeed because the agreement of the Parliament’s Bureau ignores the jurisprudence of the constitutional court, contrary to the right to self-determination, as it is unviable without a prior reform of the constitutional text. The Constitution provides that in these types of appeals the admission of the challenge implies the automatic suspension of the contested act or provision. Sources from both the progressive sector – now the majority in the court of guarantees – and the conservative sector believe that the government’s request will succeed and the popular legislative initiative will be suspended once the appeal is admitted for processing, filed through the challenge of acts of the autonomous communities. However, these same sources explain that the existence of these contradictory reports will lead to a significant debate in the court, especially in light of the precedent set by the dismissal of the appeal of the government of José María Aznar (PP) against the processing of the Ibarretxe Plan in the Basque Parliament. It is a matter, in short, of determining the terms in which the court expresses differences between the two cases.
The report opposing the admission of the appeal -prepared by the lawyer for the rapporteur of the case, Enrique Arnaldo, from the conservative sector- emphasizes the importance of the ruling issued by the Constitutional Court in April 2004 against the Political Statute Proposal of the Basque Country, known as the Ibarretxe Plan. The issue divided the court, which rejected the appeal of the Aznar government by seven votes to five. The Executive then claimed that the plan violated “more than a hundred” aspects of the Constitution. The criterion that prevailed in the court was that the challenge should be rejected because the secessionist project of the lehendakari was in parliamentary process and was not “a resolution, provision or act” subject to appeal. The Constitutional Court stated in its ruling that if not only norms, but also “simple norm projects” or “the mere intention to produce norms” could be declared unlawful, it would be impossible to carry out legal reforms.
In contrast to the application of that doctrine to the present case, the second report -prepared by one of the lawyers from the “pool” or general panel of the court- argues that the processing of the popular legislative initiative in the Parliament of Catalonia is not only a decision with internal effects in the autonomous assembly, but also has external effects of greater significance. Among them, the mobilization in favor of the proposal would be launched, through the search for signatures endorsing the project. The thesis of the second opinion, therefore, is that the processing of the ILP does not only have “ad intra” consequences as argued by the first report, but represents the effective development of actions in favor of an objective for which the autonomous assembly lacks authority.
This issue is indeed the core of the government’s appeal against the Catalan ILP. The challenge -which EL PAÍS has access to- argues that in this procedure the Constitutional Court’s jurisprudence on “the appropriateness of nullifying the decisions of the Bureau of an autonomous Parliament when they clearly violate the criteria established” by the court itself. The appeal then explains that the proposed law as a whole “is characterized by a clear unconstitutionality” and “essentially reproduces issues already resolved by the Constitutional Court in different judgments throughout the independence process.”
The appeal emphasizes, in this sense, sentence 124/2017, of November 8, 2017, which annulled in its entirety the Law of the Parliament of Catalonia 20/2017, of September 8, named “on juridical transience and foundation of the Republic.” This ruling stated that the contested law sought to “supplant, ignoring the procedures for reform expressly provided for in the legal system, the constitutional and statutory order in force in Catalonia with a transitory normative regime that constitutes its own content, until its definitive replacement, after the constituent process it regulates, by a future Constitution of the Republic of Catalonia.” The ruling added that the law represented “a total and absolute rupture with a part of the territory of the State from the established constitutional and statutory order,” thus positioning itself “in a resolved position of alienation from the current constitutional order.
