Today, section 5 of the Catalan High Court's administrative disputes chamber, which focuses on infringements of fundamental rights, published its arguments for keeping February 14th as the date for the Catalan parliamentary election, a decision which reversed the Catalan government's earlier decision to postpone the vote until May 30th. Yesterday the court provided advance information on this decision, and today all the underlying arguments were made public.
It was also stated that the decision was not unanimous, since one of the judges voted differently.
The Catalan High Court of Justice (TSJC) examined the merits of the matter in assessing the interim measures and deciding on keeping the original election date unchanged. Not only did it examine the electoral process’s legality, but it also assessed the political situation in order to avoid a period of "provisionality": “To make this decision, account was taken of the high public interest in not postponing the elections, because if they were not held a protracted period of provisionality would ensue, and the regular functioning of democratic institutions would be affected”.
The decision describes in detail the political situation which has affected the country’s institutions ever since president Quim Torra’s disqualification from office. As stated in the decision: “The implementation of decree 147/2020 of December 21st, is of particular public interest, because it triggers a fundamental mechanism to guarantee the normal functioning of institutions, given that no candidates came forward for the post of president. The management of political affairs, and the appointment and dismissal of members of the government are the responsibility of the president, thus, the post is the foundation stone of the collegiate government body. In this case, furthermore, the post was vacant so there is no “acting” president as such, since the post has been filled by the vice-president as acting president. All this while Parliament is dissolved, which limits the powers of the Permanent Parliamentary Council to the provisions laid down in article 66.2 of the Catalan Parliament Regulations until a new Parliament is elected”.
The High Court’s decision classifies the current situation in Catalonia as precarious given that there is no president and no government, at a time when a world-wide pandemic must be managed. “The situation is at a standstill and the institutional situation is precarious, which impacts on the very legitimacy of the government, something relevant at a time when the health crisis makes it imperative for the government to adopt daily momentous decisions restricting some fundamental rights. Precisely because of this, and given the circumstances, an urgent electoral process is required and this decision establishes a fixed and final date for the elections to take place”.
Regarding the protection of citizen’s right to vote given the pandemic, the court stresses that the solution is not to postpone elections but to “implement remote voting mechanisms”.
Analysing Pere Aragonès
The court also voices concerns about the limitations placed on vice-president Pere Aragonès as acting president. The powers of an acting president are limited, and section five of the administrative court refers to this in the same article in which it addresses the situation in Catalonia. “Standing in for, or being acting president does not allow exercising the functions of the post as regards tabling a motion of no confidence, the appointment or dismissal of Catalan government ministers or the early dissolution of parliament”.
Therefore, the situation according to the decision “affects the very core of the democratic political responsibility principle of the government members, since the political control tools are limited, and until a new president is appointed government members cannot be dismissed”.
At this point the term “provisionality” is explained. “this provisional situation affecting the functioning of democratic institutions endures with the postponement of elections. Thus, this situation lacks a legal basis, and, according to the Spanish Legal Law on Electoral Processes (LOREG) it should only last for as long as laid down by the rules governing electoral procedures as the necessary and indispensable time to preserve the regular functioning of democratic institutions.
It is also stated that the decision “affects fundamental suffrage rights, the postponement is not foreseen by the state-wide legal framework which explicitly allows for holding elections while a state of alarm in force”. The current state of alarm, which only imposes movement restrictions therefore, is not sufficient to call off an electoral process as the Catalan government decided.
The Catalan High Court opens a door
The High Court has decided that current health measures do not preclude travel for non-essential activities, but leaves the door open to reconsidering a postponement. And that would depend on the measures that might be implemented to reduce the spread of Covid-19. “This does not mean that major changes could not take place between now and February 14th, both regarding state of alarm regulations and health, due to the negative evolution of the pandemic which might justify the need for competent authorities to make a different decision pursuant to legal provisions, taking into account these new circumstances."
The dates set for the elections in both Galicia and the Basque Country happened to be in the midst of last spring's state of alarm and the full lockdown. Such is not the case here.
The decision stresses that the current state of alarm, and the limitations it imposes, decreed to end on May 9th, was already in force at the time February 14th was set as the election date. “The aforementioned legal provisions were in force on December 21st, 2020, when the decree calling for elections on February 14th was issued. The same is still in force today, whereby flexible travel restrictions are imposed which may become more or less stringent, or even be lifted by the competent authorities depending on how the health situation evolves, which as is well known, is highly volatile”.
The situation in Catalonia differs from that of the Basque Country and Galicia, because when elections were called for there, the state of alarm had not yet been decreed. “The case here is different because the Spain-wide state of alarm was in force on December 22nd, when elections were called, as well as on January 16th when they were postponed.
Elections on February 14th not compulsory, according to High Court
“This decision does make it compulsory for elections to be held on February 14th, and it was not the court that laid down this date. The court keeps the election date established by the competent authority (the vice-president of Catalonia) in its December 21st 2020 decision. To comply with it, the postponement until May initially agreed to is declared void and the procedural mechanisms are established for the court to give a final decision as soon as possible”. This is how the court justifies its decision.
The court also questions the possibility of holding elections on May 30th in view of the epidemiological situation. “This extended postponement, until May 30th at the latest, only increases interest in complying with decree 147/2020, because the longer the situation lasts, the greater the negative effects on the regular functioning of institutions”. Moreover, the court also points out that it is not certain elections could be held on May 30th, as stated in the text of the challenged decision, given that this decision will depend on “the analysis of the epidemiological and public health situation, and the development of the pandemic in Catalonia”. Hence the possibility of a further postponement of the parliamentary elections is already envisaged.