The Constitutional Court will be 44 years old on December 27, plunged into the greatest crisis in its entire history and without the slightest hint of agreement between its two blocs of magistrates. With part of the plenary session whose mandate has expired since June, the conservatives impose their majority of one vote to maintain the first parliamentary blockade of democracy and avoid challenges, while Spanish institutional life faces an unprecedented clash between the legislative power and the highest interpreter of the Constitution. It is an unprecedented situation in a court that has been in the eye of the hurricane of the independence process, of the reproductive rights of women and that was split in half to annul the states of alarm that the Government decreed to stop the spread of the coronavirus .
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The current crisis has an external and an internal side. Regarding the first, the plenary session last Monday signed very precautionary measures that, for the first time in a democracy, neutralize the Cortes. This decision has led to a confrontation between the legislative chambers, the Government and a court that, technically, is not part of the Judiciary.
That same night, the president of Congress, Meritxell Batet, appeared, saying that the decision lacked “precedents” in the history of constitutional jurisdiction. The president of the Senate, for his part, called to abide by the decision, but also announced that he would study ways to “preserve parliamentary autonomy.” The Upper House requested that its senators could vote on the Constitutional reform, but the conservative majority prevailed again and rejected that request. “What has happened is an interference from another power in the Legislature,” said the Prime Minister, Pedro Sánchez.
They are unprecedented statements for an unprecedented situation. Unpublished because, as a general rule, the times of the Constitutional flee from the rush. The neutralization of a norm is rare if it is not an autonomous law and has been appealed by the central Executive with an express request for suspension. And, in most cases, the judgments on the merits of the cases come years later. Many times, when the answer is merely declarative and has no practical effect.
They did not have this scope, for example, the sentences that annulled the two states of alarm that the central Executive launched to face the worst of the first phase of the pandemic. The sentences came when most of the protection measures were no longer in force. Although, as now, they also split the court in half.
A highly divided body agreed with Vox, understanding that in order to agree on a confinement like the one decreed in the spring of 2020, a state of emergency had to be declared. A measure that can only be adopted by Parliament, at the proposal of the Government. In that case, the confrontation also transferred to the public sphere. Some magistrates regretted in writing that even in the face of such an exceptional situation they had not been able to reach an agreement to send an institutional message to the public.
From the Statute to the process
The disconnection laws of the Parliament of Catalonia were the first pebble in the judicial avalanche of the independence process. But as judge María Luisa Balaguer affirmed in an interview on RTVE, the case is not comparable: “The regional parliament does not have the same legal nature as the national one.” At that time, the Constitutional Court maintained unity and suspended and annulled the disconnection laws that the pro-independence majority in Parliament was approving.
Total consensus was lost when it came to confirming the sentences of the political leaders convicted in the Supreme Court, when they had already been pardoned. These resolutions have had, according to the cases, the vote against two or three magistrates of the progressive minority. His criticisms have focused on the “disproportion” of the sentences imposed on some of those convicted of sedition. The magistrates who have raised objections to the majority theses are María Luisa Balaguer and Juan Antonio Xiol, and after the last renewal a year ago, Ramón Sáez.
Another of the great institutional clashes with tangible consequences was the one that took place 12 and a half years ago, when the court annulled up to 14 articles of the Statute as a result of an appeal filed by the PP. Among other issues, that resolution established that the term “nation” included in the preamble lacked “legal validity.” The sentence had profound effects on Catalan public and political life. In fact, it is used by the independence movement as the decision that paid for the crisis of the territorial model that ended up exploding with the failed unilateral declaration of independence in 2017.
In this case, the restrictive interpretation of the preamble had the support of the five magistrates of the conservative bloc, who were joined by Manuel Aragón, who had been elected at the proposal of the PSOE. The other four progressive magistrates voted against. That sentence caused a deep internal crisis in the progressive block of the Constitutional, which is now cohesive.
The Constitutional Court also experienced a deep crisis in 2011, when the resignation of three magistrates with their terms expired left the institution one step away from collapse. The then president, Pascual Sala, rejected the resignations so as not to put the stability of the body at risk. The progressives Eugeni Gay and Elisa Pérez Vera and the conservative Javier Delgado —elected by Congress— presented their resignation to try to force their renewal. The court then had on its hands such delicate issues as the law of equal marriage, the Parot doctrine on the release of ETA prisoners or the legalization or not of Sortu.
internal division
To the current external crisis of the court, which has as its greatest exponent the open clash with the Government and the legislative power, is also added its internal instability due to the abyss that exists between its two currents: the conservative and the progressive, the latter in the minority five against six. Both blocks are separated, therefore, by a single vote. Although they have been unable to reach unanimity on matters of the highest public relevance.
During the last week, the entire majority sector has unitedly defended the application of the very precautionary measures demanded by the PP and the paralysis of the reform that reduced the majorities to elect the members of the Constitutional and suppressed the requirement of verification of the new magistrates . The conservatives have imposed their criteria by dodging and dodging different appeals, allegations and challenges that would have left the majority to the progressives, who rejected en bloc the suspension of the legislative procedure initiated in Congress and which, except for surprise, was going to lead to the approval of that legal change in the Senate.
The court is experiencing an environment of extreme polarization that is reminiscent of that experienced last summer around the sentences on the state of alarm. Then, a magistrate elected as part of the theoretically progressive quota, Encarnación Roca, aligned with the conservative majority to accept Vox’s appeal and annul the home confinement of the first wave of the pandemic.
From that time are phrases such as that of the progressive magistrate María Luisa Balaguer, who said that some of her colleagues held “unrecommended extra-legal positions.” The also progressive Cándido Conde-Pumpido affirmed of those who had decreed the unconstitutionality of the state of alarm that they had done so with an argument “more typical of a layman than of the highest interpreter of the Constitution.” He had to apologize for those words.
In this context of internal anger, the work of arbitrator for the president, the conservative Pedro González-Trevijano, has been conspicuous by its absence. And this despite the fact that one of his objectives when he took office a year ago was to reduce the détente that already existed within the court and move a little closer to unanimity on the most important issues.
But his decision to urgently convene a plenary session to address the reform that was going to force the renewal of the court, to vote in favor of paralyzing its processing and not to depart from the deliberation even though it directly affects him, González-Trevijano has added his name to the of the greatest institutional crisis generated by that court in democracy.
