Heightened tension ahead of Carles Puigdemont’s election as president of Catalonia has prompted the Spanish government to make a desperate move in order to contest the Catalan leader’s candidacy. PM Rajoy’s government requested a report from Spain’s Council of State, with a view to lodging a complaint with the Constitutional Court. However, the advisory body has replied that there are no legal grounds for such a complaint. The Council’s rulings are non-binding, which has allowed Rajoy to forge head with his plans to prevent Puigdemont from being sworn in.
By contesting Carles Puigdemont’s presidential candidacy —thus opening a legal front before anybody expected them to—, the Spanish government may actually be committing a criminal offence. Catalonia’s pro-independence parties had come to terms with the certainty that, once Puigdemont was inaugurated, his election would be contested by Madrid, as Rajoy had already announced that much. The plan was to prevent the Catalan president from taking office by means of a combined operation involving the powers of the State, with king Felipe’s aid. But no legal challenge was expected before then, for a very simple reason: this newspaper has confirmed that the challenge announced by deputy PM Soraya Sáenz de Santamaría against the Catalan Parliament’s proposal to elect Puigdemont is a baseless legal aberration.
In a public statement on Thursday at noon, Soraya Sáenz de Santamaría announced that her government had requested the prerequisite report from the Council of State, a necessary step prior to lodging an appeal with the Constitutional Court. But, against all odds, this advisory body —led by Romay Beccaría, a former Francoist official— has ruled against the Spanish government, stating that there are no legal grounds to contest Puigdemont’s candidacy.
Despite this setback, Rajoy will go ahead with the challenge. In a cabinet meeting this Friday, the Spanish government will agree to contest the Catalan Speaker’s decision to propose that Parliament considers Puigdemont as a presidential candidate, after holding talks with all the parliamentary groups.
Sáenz de Santamaría argues that there is an arrest warrant against the Catalan leader in Spain, which makes it impossible for him to attend the parliamentary session, or else he would be arrested. Furthermore, she claims that Puigdemont’s individual rights are “limited” because he cannot “move about freely”.
Josep Pagès, a jurist with Col·lectiu Praga, believes that the administrative step which the Spanish authorities are looking to challenge cannot be contested. “Neither the Spanish constitution nor the law which governs the Constitutional Court allow for a five-month suspension of a proposed candidacy”. “While the actual election of a candidate might be contested, merely proposing a name cannot”, he adds.
Pagès points out that the challenge constitutes a violation of Article 23 of the Spanish constitution, which enshrines the people’s right “to participate in public affairs directly or through freely elected representatives” and “the right to accede under conditions of equality to public functions and positions, in accordance with the requirements laid down by the law”.
Pagès argues that “Puigdemont is an accredited member of parliament and, therefore, he may be proposed as a presidential candidate and be voted in. The Speaker of the House has the prerogative to propose him and elected lawmakers have a right to vote him in”.
On Thursday, a full list of all the MPs elected on December 21 was published in the Catalan parliament’s official Gazette, stating that they have all “attained their full rights as elected members of parliament, as per the regulations of the chamber”. Jurist Joan Costa, a Junts per Catalunya MP and deputy Speaker of the House, notes that “the rights and powers of an MP were bestowed on President Puigdemont as well as the other 134 elected representatives, with no objections by anyone. Among them is the right to be voted as president, as well as parliamentary immunity”.
El president Puigdemont va adquirir plenament els seus drets i prerrogatives com a diputat juntament amb la resta dels 135 membres del Parlament, sense cap objecció per part de ningú. Entre d’altres, el dret d’optar a la investidura i la immunitat parlamentària. pic.twitter.com/C0hN5rjYfl
— Josep Costa (@josepcosta) January 25, 2018
Furthermore, Costa remarks that Spain’s Constitutional Court has never granted any challenge against a parliamentary procedure, such as proposing the name of a presidential candidate.
El TC no ha acceptat mai la impugnació d’un tràmit parlamentari, com és la proposta d’investidura. El govern central es vol carregar ara la doctrina sobre aquest tema: pic.twitter.com/bhAmE5YLxf
— Josep Costa (@josepcosta) January 25, 2018
Another jurist, Joan Queralt, posted a message on Twitter saying that he sees no constitutional grounds to contest Puigdemont’s candidacy, and that such a decision would be “entirely arbitrary”.
1) No acierto a ver cuál es la base constitucional de impugnar la propuesta de la candidatura de Puigdemont
2) Tengo la impresión de que se sustituye el principio de legalidad por el principio de necesidad
— Joan Queralt (@JoanQueralt) January 25, 2018
Members of Col·lectiu Praga [a collective of Catalan jurists] believe that there are legal grounds to sue the Spanish government over their decision to challenge Puigdemont’s candidacy. In addition to a wilful neglect of duty, the Spanish government might be in violation of Article 542 of the Spanish criminal code, which states that: “the authority or civil servant who knowingly prevents a person from exercising other civil rights recognised by the Constitution and the Laws shall incur the punishment of special barring from public employment and office for a term of one to four years”.
Madrid’s argument to support their legal challenge is that Carles Puigdemont is unable to attend the parliamentary session, and that being physically present in the chamber is a requirement to be elected president. However, Josep Pagès believes that this infringes upon the parliamentary board’s prerogative. It is the board that must interpret the rules and regulations of the House and determine whether a candidate must be personally present or not. “If they challenged the election afterwards, arguing that is was invalid because the candidate was absent, it would be a different matter. But never beforehand”.