The Constitutional Tribunal declares Carme Forcadell to be party to the enforcement proceeding and must, therefore, be heard
There is a very important detail that has been looked over and hidden under so many headlines: The Spanish Constitutional Tribunal has been side-lined as a result of Catalan Speaker, Carme Forcadell, challenging them and it seems they intend to face up to the Spanish Government, fearful of the consequences of the actions the Spanish government is forcing them to commit.
Formally, the Constitutional Court was out of the game as from the Referendum Bill being passed, further to its Article 3.2, which disqualified any action by said Court. However, it is obvious that they were not going to take any notice and that they would be prepared to generate a clash between the two legislations designed by the Spanish premier. Well they won’t.
Mariano Rajoy pushed the notorious reform of the Constitutional Tribunal, harshly criticized by the Venice Commission, giving it punitive powers should their resolutions be violated. The reform was made with the clear intent of punishing Catalan authorities with express debarment if the independence process went ahead. A number of the Tribunal refused to accept this reform point blank, as it pushed legality to the limit. Finally, the supporters of Rajoy’s plan won the vote, but the members of the Court have made their unease has been apparent on several occasions since then. They too know that they are being placed at the edge of what is legal and that taking certain decisions could give rise to serious personal consequences.
The Constitutional Tribunal’s was meant to be decisive on Wednesday, in order to avoid the vote and publication of the Referendum Bill. Rajoy is a Public Property Registrar and is obsessed with avoiding the publication of laws justifying Catalan independence, because he believes in the value of official gazettes. How is it possible, then, that the substantiation of Catalan legality after the publication of the Referendum Bill in the Official Gazette has gone by without a reaction from the Constitutional Tribunal?
It is down to the chaos created within the Tribunal and upper echelons of the State, by the recusal to all the members of the Tribunal by Catalan Speaker, Carme Forcadell. A brilliant move they were not expecting.
The Constitution does not specify how to resolve a recusal of all the members of the Tribunal. If one or two are recused, it is the other members who will resolve. But what happens if they are all recused? Finally, though not in time to stop the publication of the referendum Bill in the Gazette, the judges decided that they themselves would resolve the debate, which opens the slow path of bringing the issue before the European Courts.
However, the second part of this affair has gone unnoticed and it is even more relevant:
Shortly afterwards, the Tribunal issued a writ accepting the action for an enforcement order brought by the Spanish government, file number 6330-2015. This writ accepts Carme Forcadell as a party. Its section three reads that Ms Forcadell is considered a “limited party, only for the effect of enabling her to defend her own personal rights”.
This means that the tribunal considers that the Speaker ia a party to the proceedings and therefore, it is impossible to disqualify her without summonsing her, without her being heard, without respecting her procedural rights be it in person or by way of legal counsel and court agents.
After the 2015 reform, this was not mandatory. The key to this decision is, then, that it prevents an express disqualification manoeuvre. Months are necessary to carry out a process of this sort, so, unless Rajoy is able to pressure the Constitutional Tribunal to such an extent that it violates its own resolutions and contradicts itself, Ms Forcadell will not be disqualified as an interim measure. Thus, the tool designed by the Spanish Government to stop the independence process is no longer of any use.
In fact, by using this procedure, the Constitutional Tribunal paves the way for all those involved in the referendum and threatened by the Tribunal to become parties to the proceedings. The thousands of public officials summonsed to be hearings is beyond imagination. It sabotages the aim of the controversial reform of the Constitutional Tribunal, which was to act extremely quickly.
According to a number of sources approached by VilaWeb, Forcadell being heard as a party to the proceeding must be understood as a de facto declaration of war against the pressures by Mariano Rajoy and the Spanish government by the members of the Constitutional Tribunal as their declaring Carme Forcadell a party to the proceeding, the judges have made it impossible for themselves to do what Mariano Rajoy wanted them to do.