An outstanding revelation. Antoni Bayona, chief lawyer of the Catalan Parliament from 2012 to 2018, has explained the key changes that the Constitutional Court made in its jurisprudence from 2015 onwards, following the first initiatives of the pro-independence process in the Catalan chamber, this Wednesday in his appearance as a witness in the Catalan High Court (TSJC) retrial of four former MPs who were members of the parliamentary Bureau chaired by speaker Carme Forcadell. Bayona detailed that the Constitutional Court evolved: first, it allowed the Bureau to admit "even manifestly unconstitutional initiatives because they were simple initiatives" and to give voice to all the parties. He emphasized that "it was from 2019", in a sentence, that Spain's court of guarantees made a compendium of unconstitutional actions and instructed that once the Bureau had been given a warning by the constitutional body, it had to refuse to admit any initiative for parliamentary consideration, whereas before this it had been optional. In other words, the new jurisprudence of the Constitutional Court arrived after the 2017 independence process.
Bayona also recognized that the court had "never" warned the Forcadell-led Bureau about the suspension of the parliamentary resolution of 2015, related to the Constituent Process, and afterwards it reflected this in a sentence the same year, and it was from there, according to the then-secretary general of the Parliament, Xavier Muro, that the "clear" warnings came over the parliamentary session on September 6th and 7th, 2017, not to pass the referendum law and the law on transition to Catalan legality, both of which were suspended by the Constitutional Court on the 7th.
Despite this legal uncertainty, prosecutor Pedro Ariche and the state solicitor, Beatriz Vizcaíno, maintained their demands for the four defendants to be sentenced to the same punishment as for the first trial, when they were convicted, and all received 20-month bans from holding public office and fines of 30,000 euros. The prosecutor specified that he was withdrawing the status of "continuing" in the alleged crime of disobedience of the Constitutional Court, but not the punishment he was seeking. He also removed from his narrative of the crime the fact that the defendant Lluís Corominas, as president of the Junts per Sí (Together for Yes) group, together with Mireia Boya (CUP party) were the ones who presented the disconnection laws in the plenary of Parliament, given that the CUP politician was acquitted by the TSJC in the first trial, a conclusion that the Supreme Court had maintained and had not included in the repetition of the trial, which had been motivated by the lack of impartiality of two TSJC judges.
In this second session of the trial, only one of the defendants, Ramona Barrufet, was in the dock, while Corominas, Anna Simó and Lluís Guinó did not attend, as the TSJC president allowed them yesterday. The trial ends on Thursday with the final summing up by all parties and the right to a last word for the four former members of Parliament's Bureau.
The resolutions: clear, or not?
In this session of the trial, the questioning of witnesses - politicians for the Catalan Socialist (PSC) and Ciudadanos (Cs) parties, and the parliamentary lawyers, focused on three fronts: the first, whether the orders of the Constitutional Court were clear enough or not. It should be remembered that the members of the same body, the Bureau, in the subsequent Parliament, under speaker Roger Torrent, were acquitted by the TSJC on another disobedience charge, because the warnings given by the court of guarantees about what they could and could not do in 2019 were not clear enough. The second focus of questioning was about the inviolability of parliamentarians and whether or not the then-members of the Bureau from Cs and the PSC felt that their role by suffered a transgression through the various requests received from the Constitutional Court. These are the two substantive legal debates that need to be resolved. And finally, the third issue in the interrogations was the observation of the evolution of the jurisprudence of the court, steadily more interventionist in response to parliamentary initiatives and debate.
"Against the principals of the Constitutional Court"
In addition to Bayona, Xavier Muro, general secretary of Parliament until 2016, and Pere Sol, who replaced him in the position, also testified. Both also noted the evolution of the constitutional judges' doctrine. According to Muro, Parliament's legislative proposals of September 6th and 7th "clearly went against the mandate of the court", and he and Bayona warned the Bureau and the deputies of the Catalan chamber. These experts also received warnings from the Constitutional Court.
For his part, Pere Sol, answering questions from the lawyer for the Junts defendants, Judit Gené, indicated that in the appeals they presented to the Constitutional Court they acted "as lawyers defending a party, in defence of Parliament", and that sometimes they were unclear as to what the court considered to be unconstitutional.
Inviolability, for the Cs and PSC members
The first to testify as a witness was Bureau member José María Espejo Saavedra, who at that time was second deputy speaker and a representative of Cs, and explained that he received several requests from the Constitutional Court not to admit any initiative on the independence of Catalonia following the court's 2015 ruling, such as that on the committee to study the Constituent Process, and Resolution 263/XI, which ratified the report and conclusions of this same committee, in 2016. "It was always the same: we had the prohibition from the Constitutional Court and we had to refrain from promoting any action that was against its resolutions", stated Espejo Saavedra when asked about the clarity or not of the warnings that the members of the Bureau received, and he added: "The Bureau is not a legislative power, but a governmental one". Lluís Corominas and Anna Simó declared in court on Tuesday that the guidance from the Constitutional Court was "generic and incomprehensible".
"I didn't feel prevented from doing anything, as an MP", said Espejo when asked by the prosecutor Ariche if he felt affected in his parliamentary inviolability by receiving the courts instructions. He was also questioned about the plenary sessions of 6th and 7th September 2017, which passed the laws to call and administer the referendum on Catalonia's independence and on the legal transition process. Espejo, to questions from lawyer Judit Gené, clarified that it was the plenary session of Parliament and not the Bureau that voted to admit for parliamentary consideration the laws on the legal transition, as well as to dispense with its consultations with the Catalan constitutional body, the Council of Statutory Guarantees, and that the warning read by the lawyers of the Parliament was for all MPs.
Afterwards, the PSC deputy David Pérez, who was second secretary of the Bureau at the time of the referendum, said that the first warning from the Constitutional Court that they received on not implementing the parliamentary resolution 1/XI of 2015 "was very clear". He also ruled out that the court's warnings affected him or came into any conflict with his parliamentary activity, in response to questions from the prosecutor about whether he "felt disturbed" in his parliamentary inviolability: "If I felt disturbed, it was for other reasons", he replied. In this regard, the lawyer for the Junts per Sí defendants asked Pérez if he agreed with the opinion of the court's warnings, and the Socialist MP replied: "We were not discussing whether it was possible to hold a referendum, which is legal, but the procedure for it.”