The Catalan election will take place on 14th February. The High Court of Catalonia (TSJC) made this clear on Friday when it announced its decision, but the reasons for its decision awaited the release of its full ruling, which it delivered this Monday afternoon.
The judges of this section of the TSJC administrative disputes chamber assert that the right to vote had to come first and remark that a postponement was only possible in the face of an "unpredictable" situation. And this, they say, did not take place, because when the elections were formally called on December 21st, the current state of alarm with mobility restrictions was already in force, and because the government foresaw meetings of a parliamentary parties committee, precisely to discuss the postponement of elections.
"The decision to postpone the elections, once called, violates the fundamental right to vote. To reach this conclusion, a detailed analysis has been made of the arguments of the parties and the public prosecutors, as well as the evidence heard in this court process", the court's text says.
The ruling focuses on how the postponement was carried out and who signed the decree: "The court starts out from the fact that the current regulation of the state of alarm, which has the force of law, expressly provides for the continuity of the electoral process, and that the authority calling the elections, in this case the acting [Catalan] vice-president, is not expressly empowered by a legal rule to suspend or postpone the elections. Therefore, the court considers that only an unpredictable situation making it impossible to hold elections for reasons of protection of public health could authorize a postponement, as occurred in the case of the Galician and Basque elections suspended in March 2020, but not in the case of Catalonia".
The court affirms the right to vote as its maximum argument for maintaining the election date despite the risks posed by the pandemic, and calls for the restoration of "democratic normality": "The court considers that the agreed postponement of an election already called is a very intense limitation of the right to vote in this case, given that it opens a long period of provisionality in the functioning of the democratic institutions of Catalonia, without a constituted Parliament and with a government in which the presidency is vacant, which means that its [cabinet ministers] cannot be removed in all this time.The current state of alarm, which intensifies the authority held by the public powers, reaffirms the need for this right to be exercised within a framework of democratic normality".
Predictable or unpredictable?
The ruling speaks of May 30th, the date proposed in the decree of postponement, as an uncertain date, given that the Catalan government did not also establish what the epidemiological indicators would have to be in order to determine whether the elections could be held. It also notes that once the government's arguments were reviewed, it did not find "a forecast that offers guarantees of certainty about the future epidemiological situation."
The court insists that the situation was foreseeable: "It has been taken into account that the element of unpredictability does not apply in the force majeure which is used to justify the contested resolution, since the situation was already known on the 21st October, 2020, when no candidate was proposed for the presidency of Catalonia. From that time, the date of 14th February 2021 was the legal default date if no president was elected in two months, which would have prevented the holding of elections, because there was one more year left in the legislature. After two months, Parliament was [automatically] dissolved and elections were called on 21st December 2020 in a state of alarm, it being predictable that there would be a surge in the pandemic as a result of the Christmas holidays, which has stabilized, and even decreased, in recent days."
"This same predictability led the Catalan government to create an extra-parliamentary consultative body, the parliamentary party committee, on December 4th, 2020, with a protocol that already specified that reviews of the election date of February 14th, 2021, would have to be made periodically before the start of the election campaign, setting the deadline for the start of the campaign (January 29th, 2021) to decide definitively the date of the elections. According to the protocol, this review was not to be carried out using strict public health criteria, but to guarantee the electoral process, which the court considers to be outside the scope of the force majeure impeding the holding of the elections already called", reiterates the court, with regard to the powers and ends of the party committee.
In fact, the court is harsh on the Catalan executive, because it considers that the postponement of the elections was made more on criteria of electoral functioning than on health risks: "In this same line, the contested Decree 1/2021 states in its preamble that it is not dictated purely by health criteria, but rather by the need to guarantee the correct elaboration of the electoral campaign, the exercise of the right to vote and the democratic guarantee in the electoral population. This implies the introduction of qualitative elements into the justification of the electoral postponement that are not appropriate in a situation of state of alarm and 'new normality', which implies restrictions for society as a whole, thus reaching the parties and coalitions as well, who have to adapt to the situation in order to carry out their functions of disseminating and forming the will of the electorate under these special conditions".
The court "considers that the limitation should be based strictly on criteria of protecting public health" and therefore, throughout its judgment, considers in depth whether conditions for this apply. And according to the seven judges, the current measures "do not prevent the holding of elections, as mobility is allowed for non-essential activities" and therefore it rules that "from the perspective of relative proportionality, the court does not find the suspension of an election date to be justified when the risks involved do not constitute an obstacle to other activities, activities which may be less important than the exercise of the right to vote."
To an extent, the ruling reprimands the government, as the current measures have not been changed since January 4th and are scheduled to be maintained until February 8th, "so there is no substantial variation in the epidemiological situation that justifies the suspension of the elections".
Finally, the court "assesses the measures adopted by the competent administrations to add flexibility in the options for non-face-to-face voting and to prevent contagion through election day procedures to guarantee health safety, and it concludes from all this that there is no force majeure that prevents the holding of elections and that the postponement decreed in the contested resolution is not justified and, for this reason, infringes the fundamental right of suffrage or voting."
Torra's disqualification and the presidential vacuum
The judges criticise the Catalan Parliament for having missed the opportunity to invest a candidate at the time when Quim Torra was disqualified: "In those two months, a candidate could have been invested [as Catalan president], which would have prevented the need to hold elections, as the ordinary term of the legislature did not end until December 2021."
"In any case, when the [current] state of alarm was decreed on October 25th, 2020, Parliament was constituted, and therefore, regardless of the fact that it was not possible to vote for a candidate for the presidency, it would have been able to prevent through parliament the impending electoral process given the situation of the state of alarm arising from the intensification of the Covid-19 pandemic, and there is no evidence that there was any initiative in the framework of the powers of Parliament," the text notes.
The parties committee, in question
"The parliamentary parties committee was to meet on January 15th, 2021 to make a first assessment of the epidemic in the election period, reviewable every seven days, and the date of January 29th, 2021, the start of the election campaign, was set as the date when the decision to hold or postpone the elections would be considered final. In compliance with this protocol, the committee, as stated in the minutes of January 15th, 2021, discussed the 'postponement of the elections, and it was considered appropriate by its members, to agree that a new date be set 'with public health and objective criteria' , but that no consensus was reached on the specific date of postponement of the elections".
"Therefore, and as we have seen, in the operating protocol of the committee, the date of February 14th, 2021 was considered from the beginning as a date that could be modified, deferring the final decision, until at the latest the day of the start of the election campaign (January 29th, 2021), based on criteria of political participation, and not strictly on health protection".