Might does not make right – Catalan laws suspended by Spain Constitutional Court [2012-16]
For several years now the Spanish government has been challenging Acts and even Resolutions of the Catalan Parliament before the Spanish Constitutional Court. These Acts fall within the powers of Catalonia according to the Catalan Statute of Autonomy as restrictively interpreted by the 2010 Constitutional Court ruling.
As many will remember, this Court had been required in 2006, for the very first time, to pass judgement on a new regional constitution (“Statute of Autonomy”) – that of Catalonia – the text of which had been scrutinised and amended by the Spanish Congress of Deputies and the Senate before being ratified in a referendum by the Catalan people. The circumstances surrounding this judgement and others affecting Catalonia have led many Catalans to lose faith in the impartiality of the members of the Court.
The Constitutional Court (Spanish: Tribunal Constitucional, TC) is the highest body with the task of determining whether legal acts and measures in Spain conform to the Constitution. The court is the “supreme interpreter”of the Constitution (the court is not a part of the Spanish Judiciary, the top appeal court for all judicial matters being the Supreme Court).
The Constitutional Court has twelve members, who serve for nine-year terms. Qualified majorities of each of the two Chambers of the Spanish Parliament propose most of the members:
– 4 are appointed by the Congress of Deputies,
– 4 are appointed by the Senate,
– 2 are appointed by the executive branch (the government), and
– 2 are appointed by the General Council of the Judiciary.
All are formally appointed by the Spanish king. One of the members is proposed by the others to be its President, for a three-year term; he or she is assisted by another of the members chosen to be vice-president, and by another member, who acts as general secretary, and is responsible for overseeing the Courts’ staff.
The Constitution sets a threshold of fifteen years of experience in fields related to jurisprudence, including “jutges, magistrates and prosecutors, university professors, civil servants and lawyers,” and members may not simultaneously hold a post in a political party or trade union or an elected post, or be employed by them, or engage in commercial or professional activities.
Despite this principle, the media and political commentators have often voiced the view that the selection procedures used to choose the members of the Constitutional Court are in many cases influenced by political party allegiances and affinities. To the extent that this is perceived by public opinion to be a significant factor in many of the appointments, questions have been raised – and not just in Catalonia – about a possible lack of neutrality in the Court’s deliberations and judgements. Furthermore, several drafters of the 1978 Constitution have said that the text is no longer being interpreted in line with its original meaning.
Nowadays, and especially in issues related to Catalonia’s political aspirations, instead of politically negotiating with the Catalan authorities the implementation of what is an democratic mandate won at the ballot box, it is easy to conclude that the Spanish government is using the court to divert or block contentious political issues that in countries with a consolidated democratic tradition are usually resolved by political dialogue.
Whatever the Court will eventually rule, as soon as the Spanish government refers a law or a decree to the Constitutional Court, that measure is by law automatically blocked for five months, and sometimes longer. This has affected about 24 Catalan laws, decrees and resolutions just in the past four years.
ANC – International Press