Photo: Javier Perez Royo (Credit: El Diario.es)
By Javier Perez Royo, Professor of Constitutional Law at the University of Seville
March 9th, 2018
There are things that a Supreme Court magistrate cannot not know. He cannot fail to know that Spain is a parliamentary monarchy, which is a form of parliamentary democracy, and he cannot fail to know the position of a Parliament in this political form.
And this ignorance is what judge Pablo Llanera has attested to in the injunction he issued yesterday in which he decided not to allow Jordi Sànchez to attend the investiture session as the candidate designated by the Speaker of the Parliament.
Parliamentary democracy rests on two principles: the first refers to the fact that power resides in the people, from which the powers of the State emanate, and the second refers to the chain through which this democratic legitimization is projected in the constitutional architecture. This means that there is only one body that directly bears it: Parliament. The power resides in the people, but institutionally it is projected in the Parliament. “The Cortes Generales represent the Spanish people,” says article 66.1 of the Constitution. It is the only occasion in which the Constitution places the people, as the holder of power, in direct connection with a constitutional body. All other connections are through Parliament.
Parliament must renew its connection with the people as the possessor of power every four years, which is the time a legislature lasts. With every renewal of democratic legitimacy, an entirely new phase of parliamentary democracy begins. Legislatures are not communicating vessels, but watertight compartments. The discontinuity principle presides over parliamentary life. Hence the numbering of legislatures.
With each renewal of Parliament’s democratic legitimacy, the renewal of the legitimacy of the government and the judiciary has to take place. The renewal of the government is explicit and visible: it happens through the investiture of the president. The renewal of the legitimization of the judiciary is implicit: “submission to the rule of law” (art. 117.1 of the Constitution) remains as it is in the current legal system as long as the Cortes Generales do not decide to innovate it. The new Cortes Generales adopt the legal order and renew its legitimation by modifying it or not modifying it.
This is exactly the same for all the autonomous communities, whose parliamentary formula is a reproduction of the state formula.
In a parliamentary democracy, Parliament is the only constitutional body that has freedom. It is the only body that creates, rather than implementing, the law. Its límit is the Constitution, but it does not implement the Constitution; instead it creates law freely, inside this limit. It has, as the Constitutional Court says, “freedom of configuration.” A freedom that has no-one else has.
And this “freedom of configuration” is manifested first and foremost in the transmission of democratic legitimacy to the government through the investiture of the Prime Minister. This is the ultimate expression of “freedom of configuration.” Parliament and only Parliament, after the holding of elections, can decide, within the limits laid down in the Constitution, how it conveys the democratic legitimacy which it bears to the Prime Minister.
For the autonomous communities, the limit imposed by the block of constitutionality is that the candidate proposed by the Speaker of Parliament for the investiture is a Member and that he is not deprived of the exercise of the right to vote. As long as this double limit is respected, it is impossible to interfere from outside Parliament in the investiture process.
The opposite would imply the denial of the principle of democratic legitimacy, the principle of parliamentary autonomy and the principle of division of powers, as well as the violation of the proposed candidate’s right of passive suffrage and the right of active suffrage of all Catalan citizens who took part in the elections on 21-D.
It is terrifying that a citizen who shows a scandalous ignorance of the foundations on which Spanish parliamentary democracy rests can be a Supreme Court judge.
In the next article we will see how one can and has to react before this fact.