Photo: Roger Torrent in the hallways of the Catalan Parliament (Credit: Alejandro Garcia, EFE)
By Javier Perez Royo, Professor of Constitutional Law, University of Seville
March 11th, 2018
Maybe Supreme Court judge Pablo Llarena thought that in issuing his injunction last Friday all he was doing was preventing Jordi Sànchez from attending the investiture session convened by the President of the Parliament, as the candidate. But, in fact, the scope of his decision is much greater. Knowingly or not, the ruling that denies Sànchez, imprisoned in Soto del Real, the penitentiary permit, is an attack on the Parliament and the people of Catalonia represented in that chamber. It is not only the subjective right of a citizen that is affected, but the right of the people as a whole to allow Parliament – which has received its democratic legitimacy by the people exercising their right to vote – to transmit this legitimacy by appointing the President of the Generalitat.
Once Parliament had been constituted after the elections of December 21, it had to proceed to appoint the president. If there is no appointment, it is as if the elections had not been held. The electoral act, of which the citizens are exclusively protagonists, must be completed with the act of appointment, exclusively elected by MPs. They are two sides of the same coin. Preventing the second is to cancel the first one. That is why a parliamentary democracy does not allow anyone from outside the Parliament to interfere in the appointment process.
Once elected, only elected MPs can participate in the appointment process in all its phases. For only they are collectively the bearers of the principle of democratic legitimacy that citizens have transmitted to them, for they transmit it through the appointment the president so that the Government can be formed. Thus it is laid down in the Spanish Constitution and the rules of the Congress of Deputies of the same State. And it is laid down in the Statute of Autonomy of Catalonia and the rules of Parliament.
Any interference from the outside amounts to an offence of prevarication*, insofar as it is impossible to justify an intervention of this kind with any of the rules of interpretation commonly accepted in the world of law. The judge acting in this way is replacing the general will expressed by the Constitution, the Statute and the rules of the legislative chamber by his personal whim. In this breakdown of the principle of democratic legitimacy, in this substitution of the general will by a personal whim is what amounts to the offence of prevarication, which, precisely for this reason, is the most serious offence a judge can commit.
Possibly without knowing it, judge Pablo Llarena has opened Pandora’s box. For not only can candidate Jordi Sànchez litigate against him for prevarication, but so too can every single citizen of Catalonia who may want to do so. In fact, the president, with the Parliament’s bureau, not only can but indeed must do so in defence of the autonomy of the Catalan institution… as can parliamentary groups, in their own defence and that of the citizens they represent… and local councils and provincial councils… and universities and professional associations. And so on.
Judge Pablo Llarena has opened the door to a deluge of complaints that could flood the Supreme Court. From anywhere in Catalonia a complaint can be activated and everyone will be legitimized, because not a single person has not been attacked by the ruling, even if there are citizens who do not feel it as such.
The Supreme Court will have to cope with this as a result of the investigating judge’s ruling. But the legal consequences of his decision do not end there.
Lack of impartiality
With the ruling, judge Pablo Llarena has revealed his lack of impartiality and, consequently, the invalidity of everything he has investigated to date. Right now the lawyers of those who are being investigated by the Supreme Court, whether or not the examining judge has issued preventive measures against them, may register their writs denouncing the lack of impartiality of the investigating judge and, as a result, calling for the declaration of invalidity of all that he has investigated. Obviously they can also request the lifting of all precautionary measures that have been adopted, including imprisonment. These are the consequences of that enormous constitutional botch-up: the ruling issued on Friday by Judge Pablo Llarena.