JOSÉ MARÍA BRUNET, Madrid
The members of the Spanish Constitutional Tribunal (TC) have begun the holidays with the worry of the decisions it may have to take in the immediate future regarding Catalonia and the referendum for Independence called for 1 October. A particularly worrying scenario for the judges is if, as provided in the current Law on the Functioning of the TC, the Spanish government requests the removal or cessation of an elected official, starting with the President of the Generalitat (Catalan Government), Carles Puigdemont.
The latter has mentioned this legal possibility and has vowed not to obey the court order, should it be ruled. In any case, the concern of the TC came before this statement. What troubles the members of the Court is not so much the response to an order of this kind, but considering the order in the first place. The Judges have discussed the matter and are very clear that such an order would not be unanimous. At least four of the Judges, who are members of the progressive minority, would refuse to support the removal from office of political representatives. They would express their opposition by way of a dissenting vote against exercising the legal possibility, available to the TC, of ceasing public officials. Furthermore, it is not only the progressives – judges Fernando Valdés Dal-Ré, María Luisa Balaguer, Juan Antonio Xiol and Cándido Conde- Pumpido– who might vote against the measure; they might be joined by the Vice-President, Encarna Roca, Professor of Civil Law at the University of Barcelona and who was supported for appointment by the Catalan CiU and PSC parties. A decision of this significance being taken without it being unanimous is very unsettling for the Constitutional Tribunal. Since the beginning of the so called Catalan process for sovereignty, the TC has dealt with a succession of actions and noncompliance contingencies sent them by the Spanish Government as an obligation of their function. They have also, however, also felt that, in varying degrees depending on the specific moment, they have been lumbered with excessive prominence. It has, in fact, pointed out in its rulings, that the resolution of such territorial controversies should be dealt by the political powers rather than the judicial.
The trickle of challenges by the central government against the Catalan Generalitat has, however, not ceased and the TC still finds itself in a leading role regarding the Catalan independence process in general, and most specifically, the 1 October referendum. The situation has the members of the Court discussing their viewpoints and even considering the possible steps the Spanish Government and the Generalitat might take.
These discussions have included the possibility of the government making use of its prerogative to request the TC to cease Catalan public officials. And here, the outcome has been practically unanimous: the central government must be made aware of the risk of a split in the Constitutional Court and the risks this would entail for the institution itself and for the best strategy to protect the Spanish Constitution.
There are a number of channels for this type of messages to reach the Government. The TC is sure that this particular message has reached its destination. Mostly because the majority conservative faction (closest to the Spanish government) don’t want to be involved in a situation where the TC is split and they might be accused of having fuelled the conflict and contributed to generating greater tension in the difficult institutional and political relationship between the State and Catalonia.