Photo: Roger Torrent, Speaker of the Catalan Parliament (Credit: Quique Garcia, EFE)
By Javier Perez Royo, Professor of Constitutional Law, University of Seville
March 7th, 2018
The person who proposes the candidate and decides the day the investiture plenary is to be held is the Speaker of Parliament. Nobody else has authority to do it. And no-one can stop that decision from materializing.
All that is required by the Constitution and the Statute of Autonomy is that the candidate who is proposed has to be an elected Member of Parliament and cannot be a person deprived by a non-appealable Court judgment of the right to vote. As things stand, nobody can prevent the proposed candidate from attending to the plenary.
When the proposed candidate is subject to a precautionary measure such as jail withouty bail, the Speaker of Parliament must address the judge who ordered this precautionary measure. Not because for him to authorize the candidate to go to the investiture session, but to require him to have what is necessary for the candidate to be there.
The judge has no authority in this matter. The only person that has authority is the Speaker of Parliament. The magistrate is duty-bound to comply with the requirement. In legal terms this has nothing to do with the review of the imprisonment order. They are completely different things. The review of an imprisonment order is a legal operation. Requested by the interested party, it enters within the provisions of the law that the judge who has to resolve calls the parties to a hearing so that they can plead what they think fit.
But laying down what is needed to fulfil the requirement so that the proposed candidate goes to the investiture session is a material operation devoid of legal content. The magistrate should just go to the corresponding ministry – I believe it is Interior, but it might be Justice – because the candidate moves with all the security measures that the judge deems relevant until, once the investiture has finished, he returns to prison.
Later, judge Pablo Llarena will have to resolve the request for a review of the imprisonment order, which is legally independent of the investiture. The candidate who attends the plenary session is no longer subject to the precautionary measure, and remains without freedom. All he can do is go to the Parliament, guarded by the members of the security forces of the State.
In the framework of this operation, the proposed candidate is not the person who has to go to the judge to request the authorization. It is the Speaker of Parliament who has to make the request.
Were the judge not to respond he would be committing an offence and a serious one at that, inasmuch as he would be preventing the normal operation of the institution in which the process of democratic legitimization of power rests in the autonomous community of Catalonia, which is a constituent part of the State. It is also State.
Once Parliament is constituted, the President’s appointment is the session that really marks the beginning of the legislature. If there is no investiture of the President within a period of two months from the first vote, Parliament is dissolved. No other parliamentary act considered on its own is as transcendental as the investiture of the President of the Spanish government or of an autonomous community. The Speaker of the Congress, or of the Parlament, is the only authority that orders how the session is carried out. It is an exclusive and exclusive power. No one can be unaware of his authority, not even the Constitutional Court. His decisions are mandatory orders.
This is the ABC of parliamentary law. It makes me blush to have to put it in writing, almost forty years after the entry into vigour of the Constitution.