The Constitutional Court has endorsed this Tuesday the alternative oath formulas used by 29 deputies from various parliamentary groups in May 2019, when they took possession of their seats at the beginning of the brief XIII legislature, and, by extension, to those that were held also at the beginning of the legislature that is now ending. The court, which thus rejects the amparo appeal filed by eight PP deputies, does not discuss whether the rules of Congress were violated, but limits itself to concluding that the rights of the rest of the public representatives were not injured. The relevance of the sentence derives from the fact that, at the beginning of the controversy on this matter, it was questioned whether the deputies who used these alternative oath formulas had acquired the full status of parliamentarians.
The appeal of the PP challenged the agreement of the president of Congress, Meritxell Batet, adopted in the constitutive session of the XIII Legislature, on May 21, 2019, and who duly took the oath or promise to abide by the Constitution of 29 deputies who added comments to the expression “yes, I swear” or “yes, I promise”. Oriol Junqueras, for example, promised the Constitution “from the republican commitment, as a political prisoner and by legal imperative.” Several deputies from Podemos did so “for democracy and social rights.” In the constitution of the Cortes of the present legislature, on December 3, 2019, the parliamentarians of Junts per Catalunya, ERC, PNV, CUP, EH Bildu and four deputies of Podemos used different alternative formulas.
The sentence, for which Judge María Luisa Segoviano has been the rapporteur, has been approved by six votes in favor (those of the progressive block) and four against (the conservative sector). Judge Juan Carlos Campo, who decided to abstain because Meritxell Batet is his partner, did not participate in the deliberation.
The PP deputies who demanded amparo argued that accepting these formulas for compliance with the Constitution violated their right to political representation, established in article 23.2 of the Constitution, and resulted in unequal treatment between public representatives, since those who had complied with the Constitution In accordance with the regulatory requirements, they had had to “endure” that other deputies used formulas other than those legally provided.
The Constitutional affirms in its sentence that the Article 23.2 of the Magna Carta does not consecrate “a right to respect all the prescriptions of parliamentary regulations”, but only guarantees it “against those violations of parliamentary regulations that affect the core of the rights and powers of political representatives, such as, mainly, the that are directly related to the exercise of legislative powers and control of government action. The court emphasizes, in this sense, that it is not proven that the decision of the president of Congress “has affected, curtailing them, the rights and powers that make up the status of the position of congressional deputy of which the plaintiffs are holders”. The ruling highlights that there was no “unequal treatment between the deputies, since all the compliance formulas were validated.” And it adds that the court “does not have to proceed to the analysis of whether there was a possible contravention of parliamentary norms for validating these formulas of compliance with the Constitution.”
The magistrates Ricardo Enríquez, Enrique Arnaldo and Concepción Espejel —of the conservative sector—, have formulated a dissenting vote, estimating that, “although it is true that the sentence approved does not prejudge the question of the validity of the formulas used to accede to the position ” by the deputies who used alternative phrases, the Constitutional Court “has wasted” the opportunity to clarify the controversy over the behavior of these deputies. These judges argue that the sentence that the court handed down in 1990 on this matter accepted that the expression “by legal imperative” should be put before the formulas “yes, I swear” or “yes, I promise”. But they consider that that admission meant that “in no case could expressions that condition or contradict the essentially formal and solemn nature of the act of oath and its ultimate meaning of representing an act of homage and respect for the Constitution be considered valid.”
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The dissenting magistrates add that the rights of the deputies who challenged the decision of the president of Congress have been violated, because “this obligation to participate in commissions and plenary sessions with people who cannot exercise their rights as deputies is imposed on them.” The Constitutional Court, according to these magistrates from the conservative sector, has previously handed down two sentences in which it declared that “the acceptance by the organs of the Chamber of some votes cast by parliamentarians receiving an illegal vote delegation for coming from deputies suspended in their position put others in an unequal situation.” The dissenting magistrates add that “in the present case, with the same or greater reason, the vote of the appellant deputies is devalued by having to be counted together with those cast by people who have not complied with an essential requirement for the full exercise of their position.” .
Judge César Tolosa, finally, also disagrees with the decision, with his own arguments. Tolosa affirms that the acceptance of alternative oath formulas “disnaturalized, by not being legally constituted, the collegiate and joint representation of the Spanish people that is attributed to the Cortes Generales.” In the opinion of said magistrate —from the conservative sector, like the three previous ones—, the acceptance of such formulas “undermined the very essence of the condition of deputies of those who had indeed acquired such condition.”
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