Populist challenges to constitutional jurisprudence

The fact that populism has not hitherto permeated the jurisprudential interpretation of the constitution in Spain does not imply that the constitutional jurisdiction has not had to face the challenge of populism in some of its rulings. In particular, the long series of rulings related to secessionism in

Catalonia acted precisely to counteract the populist tendencies at the base of some parties that have encouraged action aimed at Catalan independence. They arc rulings in which the Constitutional Court has had to interpret the possibilities and limits of the constitution in relation to the proceedings and secessionist postulates.

It should be noted, however, that this has been a problem to which the Constitutional Court itself contributed in a very relevant way through STC 31/2010, as we indicated in a previous work on this subject.[1] Despite this, the Constitutional Court has subsequently assumed a more open position in relation to the procedures that the Catalan secessionists could have activated to reform the Constitution, indicating that the Spanish Constitution may not only be reformed but also even admits its total revision. Therefore, from the constitutional perspective, the secessionists’ claims could have followed the constitutional channels through an initiative for constitutional reform promoted by the Autonomous Community region itself, which is provided for in the Spanish Constitution, but paradoxically they have never tried, although they could have done so. Another matter would be the success or failure of such an initiative for reform during its subsequent processing, based on political negotiation between all the parties involved. But what is not constitutionally acceptable to the Constitutional Court is unilateral action contrary to the constitutional order.

The list of pronouncements of the Constitutional Court related to this topic is very long and has not ceased since 2014 to today. In 2014, the

Constitutional Court marked a very relevant jurisprudential line[2] which partially upholds the claim lodged by the Government of Spain against a decision on the ‘Declaration of Sovereignty and the Right to Decide of the People of Catalonia’. The Constitutional Court established that the so-called first principle entitled ‘Sovereignty’ of the Declaration approved was ‘unconstitutional and void’. At the same time, the Court affirmed that the references to ‘the right to decide’ of the citizens of Catalonia are not unconstitutional if it is interpreted in the sense set forth in legal foundations 3 and 4 of this ruling. Thus,

The proposal of conceptions that seeks to modify the very foundation of the constitutional order is possible in our legal system, provided that it is not prepared or defended through an activity that violates democratic principles, fundamental rights or other constitutional mandates, and the attempt to achieve them effectively is carried out within the framework of the constitutional reform procedures, since respect for these procedures is always and in any case inexcusable.

In 2015 there were other pronouncements from the Constitutional Court, most notably the last one of that year, related to the result of the ‘plebiscitary’ elections to the Catalan Parliament called for 27 September of that year. The secessionist sectors that had given these elections a plebiscitary nature clearly lost the ‘plebiscite’, as they failed to exceed 48% of the vote. However, they obtained the majority of seats in parliament and began a complicated drift towards sovereignty incompatible with minimum respect for democratic rules, since a minority cannot impose independence on the majority of society (independence being a matter that would in any case require a reinforced majority of no less than the two-thirds required to reform the Statute of Catalonia). Another decision of the Constitutional Court states the unconstitutionality and nullity of Resolution 1 /XI of the Catalan Parliament, adopted on 9 November 2015, ‘on the start of the political process in Catalonia as a result of the electoral results of 27 September 2015’. The Court clearly indicates in FJ7 of that ruling that

[t]he autonomous chamber cannot establish itself as a source of legal and political legitimacy, to the extreme of claiming the power to violate the constitutional order that sustains its own authority.

The jurisprudential lines of the Constitutional Court were maintained in 2016 and 2017, with new pronouncements23 that were to continue in 2018, 2019 and 2020.24 Of particular relevance were the Constitutional Court’s two rulings, both on 2 July 2019,25 in relation to the application of Article 155 SC.26 The application of Article 155 followed repeated disobedience by the Catalan secessionists as regards the resolutions of the Constitutional Court and as a consequence of Catalonia’s declaration of independence which, although subsequently suspended by the President of the Generalitat himself several seconds after it was pronounced, generated great political tension that could only have been resolved without state intervention by calling elections to the Parliament of Catalonia, which the President of the Generalitat finally refused to do. The national government then decided to request authorisation from the Senate (upper house of the national parliament) on

  • 23 The jurisprudential pronouncements of 2015 have to do with the consultation promoted by the Generalitat on 9 November 2014. They arc the Constitutional Court’s sentences 31/2015, of 25 February (in which some precepts of the Law of the Parliament of Catalonia 10/2014, of 26 September, of non-referendum popular consultations and other forms of citizen participation, are annulled), 32/2015 of 25 February (in which the Decree 129/2014 of 27 September on calling the non-referendum popular consultation on the political future of Catalonia is annulled) and the STC 138/2015 of 11 June (in which the actions of the Generalitat of Catalonia regarding the calling of the consultation are declared unconstitutional).
  • 24 As regards 2018, the АТС 5/2018 of 27 January, the АТС 68/2018 of 20 June or the SSTC 10/2018 of 5 February; 46 and 47/2018 of 26 April and the STC 136/2018 of 13 December and others can be mentioned. In 2019, we must consider the STC 19/2019, of 12 February, which declares the provision for the investiture of a candidate for President of the Generalitat in his or her absence as unconstitutional. In the same sense, the STC 45/2019 of 27 March declares the unconstitutionality of several provisions of the Law of the Parliament of Catalonia 2/2018, of 8 May, annulling the legal precepts of the autonomous community that made it possible for a candidate to the presidency of the Generalitat of Catalonia to be invested without being present in person, as well as for remote meetings of the governing council to be held.
  • 25 SSTC 89/2019 and 90/2019 of 2 July 2019.
  • 26 Article 155 of the Spanish Constitution (inspired by Article 37 of the German Grundgesetz) was used to intervene the Generalitat of Catalonia and call for elections. Accordingly to this Article:
  • 1. If an Autonomous Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way seriously prejudicing the general interests of Spain, the Government, after lodging a complaint with the President of the Autonomous Community and failing to receive satisfaction therefore, may, following approval granted by an absolute majority of the Senate, take measures necessary in order to compel the latter forcibly to meet said obligations, or in order to protect the above-mentioned general interests.
  • 2. With a view to implementing the measures provided in the foregoing clause, the Government may issue instructions to all the authorities of the Autonomous Communities.

21 October 2017 to apply this constitutional precept after its request to the President of the Autonomous Community of Catalonia was not heeded. The Senate granted its approval, and the Government of the Nation dismissed the Government of the Autonomous Community of Catalonia and called for elections to form a new government in that Community. Two appeals of unconstitutionality were lodged against the Senate Agreement, one by members of Congress (lower house of the national parliament) of the parliamentary group Unidos-Podemos-En Comú Podem-En Marca,[3] and the other by the Parliament of Catalonia, which also challenged all the provisions issued in implementation or application of the measures authorized by the Agreement. In both cases the Constitutional Court rejected the appeals except for one very specific aspect: the attribution of a lack of validity of rules or acts published without authorization because the Constitutional Court understood that they could affect legal certainty. As regards the rest, the Court declared full compliance with the constitution in the implementation of Article 155 already carried out recalling, in the face of the appellants’ allegations to the contrary, that the constitutional conditions required for their application were indeed met, taking into account the repeated failure of the Government and Parliament of the Generality to comply with the decisions of the Constitutional Court itself. In any event, the Court also defined the general conditions to which it must be submitted, indicating that

This norm allows the temporary alteration of the functioning of the autonomous institutional system, but in no way can it lead to the indefinite suspension of autonomy and, still less, to the institutional suppression of the autonomous community itself.

The implementation of Article 155 SC cannot give rise, therefore, to a limitation of indefinite autonomy over time, but that it must have a determined or determinable time limit. For the Constitutional Court,

Art. 155 CE is not an end in itself, but an instrument to guarantee the validity and effectiveness of the constitution in cases in which it is evident that only this way is it possible to restore the constitutional order.[4]

Among the latest pronouncements of the Constitutional Court in relation to this issue of separatist tensions in Catalonia, it is worth noting those related to monarchy. In addition to these judgments, there are others that have to do with particular situations related to the judicial processes that have taken place in the criminal jurisdiction or with appeals for legal protection of rights motivated by actions of the Parliament of Catalonia.

Especially noteworthy is the high number of applications for enforcement that the Constitutional Court has had to rule upon due to non-compliance with its rulings by the secessionist sectors. Such contempt shown to the Constitutional Court contrasts with the attitude of the rest of the Catalan and national political actors who do respect its decisions. Although the secessionists have never obtained the majority of the votes in the elections to the Catalan Parliament (never exceeding 48% of the popular vote), they do have the parliamentary majority due to the disproportionality of the electoral system. This has allowed them to continue forming a government and passing parliamentary resolutions that challenge the Constitutional Court

by ratifying agreements that have been declared null by the constitutional jurisdiction. Examples of this attitude are very numerous; it is enough to point out the Constitutional Court Orders issued in execution of previous sentences with which the Generalitat of Catalonia has clearly not complied and to which we have previously referred.[5] So the ftindamentalist nature of populist attitudes, which obviate the conditions of the rule of law to emphasize the unlimited will of parliamentary majority (even if the latter does not represent the majority of the population as in the case of Catalonia) against the current constitutional framework, is evident here. For this reason, they repeatedly fail to comply with the rulings of the Constitutional Court, while the controversial reform of the Constitutional Court Organization Act of 2015 (LOTC), which gave the Constitutional Court itself additional powers to enforce its rulings, has not served to prevent such non-compliance.

In the case of Catalonia, this intention by the secessionists to represent the people as a whole, thereby nullifying pluralist democracy, is constant. For example, when it is stated that ‘the will expressed on many occasions by Catalan society to maintain Catalonia as one people shall be guaranteed’, it is obvious that more than half of Catalan society does not want independence, so that more than half of its members end up being expelled from this concept of‘one people’. The truth is, however, that the people of Catalonia express themselves through democratic institutions within a constitutional framework that must be observed, because the legitimacy of Catalonia’s institutions derives from this framework.

However, the secessionists accept this constitutional framework as regards whatever interests them, while infringing upon whatever goes against their political projects because they appeal to a superior will, that of the ‘people’ whom they alone represent. But it is not the will of the real, plural people, i.e. the people that express themselves through democratic institutions under the rule of law; rather, it is they themselves constituted as a unique ‘people’, from which they exclude the majority of citizens because they do not coincide with their political positions. For this reason, they repeatedly fail to comply with the resolutions of the Constitutional Court, because they do not accept any legal limit to their will, which is defined as the authentic will of the Catalan people.

These populist groups thus consider themselves as a part of the people when it suits their interests (when they stand for election, form a government, lodge appeals with the Constitutional Court) and as a whole when it is more usefill for their projects (when they do not respect the rules that establish limits to the power of the majorities or the government, or when they do not accept the Constitutional Court’s resolutions). They exercise the political power of the ruling majority within the constitutional framework when it interests them, yet they cross the border of that framework by exercising a constituent power when it seems convenient for their purposes. In doing so, they break not only the current Spanish Constitution but also any possible constitutional and democratic organization of coexistence. This is clearly evidenced in Law 19/2017 of 6 September on the self-determination referendum, declared unconstitutional by the Constitutional Court, in which the parliamentary majority of Catalonia intends to exercise sovereign power, stating in its Article 3.1 that ‘the Parliament of Catalonia acts as representative of the sovereignty of the people of Catalonia’. But neither the Parliament of Catalonia nor the State Parliament represents the sovereignty of the people; proof of this is that its laws can be prosecuted by the Constitutional Court and annulled for violating the Constitution.

This attitude can be seen even more clearly in article 3.2 of the same Law 19/2017 of the Parliament of Catalonia, which indicates that this law ‘prevails hierarchically over all the rules that may conflict with it, while it regulates the exercise of a fundamental and inalienable right of the people of Catalonia’. In other words, a law that is approved within the framework of the Constitution and the Statute of Autonomy by a narrow parliamentary majority that does not represent even 48% of the voters is above the Statute of Autonomy and the Constitution itself. In short, the legal framework by which Parliament has a scries of powers is accepted, but the limitation of those powers by the legal framework is not accepted. What benefits the interests of populists (the rules that define a parliamentary majority) is accepted, but it is not accepted what does not interest them (the rules that define the limits established by the rule of law for that parliamentary majority).

All of this must be qualified, however, with two observations. The first is that the populist drift of the Catalan secessionist sectors is atypical in the sense that they do not share the radical political programmes of other European populist sectors. But what they do share is fundamental in being able to be classified as populists: the claim to represent the people as a whole, the use of a concept of democracy that rejects pluralism and constitutional democracy and the contempt for constitutional jurisdiction, the resolutions of which they systematically disregard.

The second observation is that, in the populist evolution of the Catalan secessionist movement, there is (as in many other populisms) an ultimate reason that is only partially attributable to them: the blockade of politics, the


STC 114/2017 of 17 October.

inability of the rulers to manage problems through the Constitution and to give political solutions to those problems within the constitutional framework. The responsibility here clearly lies with the Popular Party government, which allowed the political problem to grow without applying the means to solve it before it finally led to a radical confrontation. The context of an economic crisis, for its part, also contributed to the development of increasingly intense political tension.

  • [1] Balaguer Callejón (n 4). As indicated previously in that work: ‘Constitutional Court Judgment 31/2010, of28 June, relating to the Statute of Catalonia, declared that just one complete Article of the Statute was unconstitutional together with another three specific paragraphs of Articles or specific clauses that do not affect relevant legal issues related to the reform. However, its political impact was very negative as it unnecessarily affected questions of identity and because of the circumstances under which the pronouncement of the Constitutional Court was made ... STC 31/2010, in relation to the Statute of Catalonia, has fostered a large drive towards pro-independence positions and an evolution towards these positions on the part of the main nationalist party, which has been the governing party throughout almost the entire existence of the Autonomous Region. The motives are not just in the judgment; they are also related to the challenge to the Statute by the Partido Popular, despite no claim being lodged by the same party against the Statute of Andalusia, which contains a large number of similar articles to that of Catalonia. The many types of incidents suffered by the process before the Constitutional Court (challenges of judges, leaks of draft judgments, etc.) contributed to generating a growing feeling of discontent in a large part of Catalonian society in relation to the Constitutional Court’. 2 STC 42/2014, of 25 March. 3 Article 166 of the Spanish Constitution establishes that ‘The right to propose a Constitutional amendment shall be exercised under the terms contained in clauses 1 and 2 of Article 87’, in accordance to Article 87.2, ‘The Assemblies of the Autonomous Communities may request the Government to pass a bill or refer a non-governmental bill to the Congressional Steering Committee and to delegate a maximum of three Assembly members to defend it’. 4 Cf. a very comprehensive reference to the rulings in Francisco Balaguer Callejón (Coord.), Manual de Derecho Constitucional (Tecnos 2020).
  • [2] STC 42/2014, of 25 March. 2 Resolution 5/X of the Parliament of Catalonia, approving the ‘Declaration of Sovereignty and the Right to Decide of the People of Catalonia’. The first section of that Resolution states: ‘The people of Catalonia have, for reasons of democratic legitimacy, the character of a sovereign political and legal subject’. On the basis of this self-attribution of sovereignty, the keys to exercising the right to decide are defined, indicating: ‘the Parliament of Catalonia agrees to initiate the process to make effective the exercise of the right to decide so that the citizens of Catalonia can decide their collective political future’. 3 Paloma Biglino Campos, ‘Cataluña, federalismo y pluralismo político’ (2016) 37 Teoría y Realidad Constitucional 449-459. 4 STC 259/2015 of 2 December.
  • [3] Resolved through STC 89/2019 of 2 July. 2 Resolved through STC 90/2019 of 2 July, which on the other hand dismisses the challenge to these provisions, thus limiting the scope of the recourse to the Senate Agreement by rejecting 'the alleged existence of an alleged “normative unit” in which what was agreed by the Senate and the provisions or acts adopted in its execution would seem to be included’. 3 For the Constitutional Court (STC 89/2019), it is legitimate for these acts to be subject to authorization while Article 155 is being applied so as to ensure that such application is effective and to establish prior controls to that effect in relation to what is officially published ‘but in the event that such controls are circumvented or are ineffective, legal certainty (Article 9.3 EC) prevents the remedy from being that such publication is deemed to be unverified’. 4 STC 89/2019: ‘To reach this conclusion, it is enough to recapitulate what this Court has declared in the pronouncements issued in relation to provisions and acts that form part of the so-called “constituent process aimed at the creation of an independent Catalan state in the form of a republic” (STC 90/2017, 5 July, FJ 3, among others). This process was launched by the resolution of the Parliament of Catalonia 1/XI, of9 November 2015 “on the initiation of the political process in Catalonia as a consequence of the electoral results of 27 September 2015” (declared unconstitutional and null and void by STC 259/2015 of 2 December, which in turn was repeatedly violated by the Generalitat: AATC 141/2016, of 19 July; 170/2016 of 19 December; 24/2017 of 14 February and 123 and 124/2017 of 19 September)’.
  • [4] In addition to these pronouncements by the Spanish Constitutional Court, there have been two others by the ECtHR and one by the ECJ. (In the ECtHR in the case of Aumatell i Arnau v. Spain of 4 October 2018 and in the case Maria Carme Forcadell i Lluis and others v. Spain of 28 May 2019.) The claim was declared inadmissible in both cases. In the ECJ, in its ruling of 19 December 2019 (Case c-502/19, Junqueras case) on a question referred for a preliminary ruling by the Spanish Supreme Court, it was decided in favour of recognizing the immunity of Oriol Junqueras from the moment that he was elected a Member of the European Parliament. 2 STC 98/2019 of 17 July, in which two paragraphs of Resolution 92/XII of 11 October, of the Parliament of Catalonia, related to the disapproval of the Head of State carried out by the autonomous Parliament and with the abolition of the Monarchy are declared void. Likewise STC 111/2019 of 2 October, which annulled Resolution 298/XII of 7 March of the Parliament of Catalonia creating a ‘Commission of Inquiry into the Monarchy’. 3 To mention a few examples, the STC 75/2019 of 22 May, the STC 155/2019 of 28 November, in both cases with three dissenting opinions on the court’s decision; the STC 115/2019 of 16 October, with one dissenting opinion; the SSTC 3 and 4/2020 of 15 January, with two dissenting opinions; SSTC 2 and 5/2019 of 15 January; STC 22/2020 of 13 February, with three dissenting opinions; STC 9/2020 of 28 January, with three dissenting opinions; SSTC 10 to 12/2020, all of28 January; SSTC 36 and 37/2020 of25 February, with three dissenting opinions and STC 38/2020, also of 25 February. 4 Along with those mentioned in previous notes, in the year 2019 alone, we can mention those ruled on by the Constitutional Court in AATC 180, 181, 182, 183 and 184, all of them from December 2019. In 2020, AATC 9 to 11/2020, the two of January 28 and AATC 16 and 18/2020, both from 11 February.
  • [5] Vid supra the ATCs mentioned in notes 24, 30 and 34. 2 By means of Organic Law 15/2015 of 16 October on the reform of Organic Law 2/1979 of 3 October on the Constitutional Court, for the execution of the decisions of the Constitutional Court as a guarantee of the rule of law. This Law would be challenged before the Constitutional Court by the Government of the Generalitat of Catalonia and the Basque Government, appeals that were rejected by the Constitutional Court in the SSTC 185/2016 of 3 November (that of the Basque Government) and 2015/2016, of 15 December (that of the Generalitat of Catalonia) although the debate on the reform was also raised in the Court itself leading to the presentation of dissenting opinions by various judges. 3 Resolution of the Parliament of Catalonia 5/X, of 23 January 2013, approving the ‘Declaration of Sovereignty and the Right to Decide of the People of Catalonia’.
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