The Superior Court of Justice of Catalonia (TSJC) has suspended this Tuesday, provisionally, the decree of the Generalitat that annulled the holding of the regional elections scheduled for February 14. The Fifth Section of the court has estimated the very precautionary measures requested by an individual against the decree signed by the acting president Pere Aragonès. The consequence is that, at least until the chamber decides on the merits of the matter, the call for the elections for 14-F remains in force. The Generalitat, which had located the elections on May 30, has complied with the interlocutory and has reactivated the preparations, although it recalls that the postponement was motivated by the pandemic. “The only legal uncertainty is the one being created by the Superior Court of Justice of Catalonia,” said the Government spokesperson, Meritxell Budó.
The decision of the TSJC does not anticipate what will be its decision on the merits of the lawsuit; that is, if the postponement decree will be definitively overthrown. The date of the elections, therefore, remains a mystery. Two of the six lawsuits filed as of Monday requested the adoption of “extremely precautionary” measures to annul the decree. In this class of measures, there is no need to listen to the opposing party (the Generalitat) whenever there are special reasons of urgency. And the magistrates believe there are.
In video, the president of the Congress, Meritxell Batet, expresses her respect for the TSJC resolution on the Catalan elections this Tuesday.
The 14-F electoral process “must continue” while the petition is “resolved” “with the greatest agility,” says the court. That the election clock is started immediately – as ordered by the resolution, which does not allow for appeal – is the only way to guarantee that, if the plaintiffs are finally agreed and the decree is suspended, there will be material time for hold the elections with all the guarantees.
The electoral process, remember the judges, has a duration of 54 days from its convocation, as established by the Organic Law of the General Electoral Regime (LOREG). Paralyzing it, “even for a few days, prevents the possibility of holding the elections with all the guarantees.” The terms are “short and successive” and cover many areas: electoral boards; census; formation of polling stations; appointment of representatives, administrators and auditors; candidacies; electoral propaganda; absentee ballot; election campaign.
The decree of the Generalitat suspended the electoral process on the 25th day after the call. If you wait longer to make a decision, it would lead to “a practically irreversible situation”: the elections “could not be held on the date originally scheduled” and then the appeal of the plaintiffs would be useless. The resolution recalls, for example, that the proclamation of candidates must be made on the 27th day after the call.
The decision to suspend the decree is therefore “instrumental”, to “avoid losing the purpose of the appeal.” But it does not mean that it will remain when the magistrates debate the merits of the matter in the coming days, once all the parties have been heard. The court has ordered the Prosecutor’s Office and the Generalitat to make the allegations they deem appropriate before 10.00 on Thursday. And it has ordered that the resolution also be made known to the Central Electoral Board and the Permanent Delegation of the Parliament of Catalonia.
“We reactivated the electoral process because we have everything ready to do so,” said the Minister of Foreign Action, Bernat Solé. The head of the election system has invited, for example, local corporations to carry out draws to elect the members of the polling stations. Both Solé and the spokesperson, Meritxell Budó, have asked the TSJC to resolve in the shortest time possible to avoid more uncertainty among citizens. The Government will present its allegations this Wednesday before the court and defends that the postponement decision had a “solid judicial base” behind it.
The Catalan elections are caught in a legal tangle of complicated resolution. The LOREG does not contemplate any type of postponement of an election, therefore, from the outset, any decision in this regard lacks a solid legal basis. The Generalitat has clung to the only precedent, what happened last year with the Basque and Galician elections, and has followed the same arguments to try to shield the decision to move the day of the elections from 14-F to 30-M. In both cases, neither party contested the new date.
The acting Government, following the two examples, first tried to reach a consensus with all the forces with representation in the Parliament to try to offer this agreement as a political shield against legal uncertainty. From the beginning, all the formations agreed that the criteria for modifying the calendar should be sanitary. The bad forecasts shown by the Generalitat last week did not convince the PSC, which dropped the agreement despite the fact that it finally tacitly accepted the date of 30-M. In between, the Government also made it clear through the mouth of the Minister of Justice, Juan Carlos Campo, that postponing the date was “an attack on democracy.” All the formations and the Government see in these words the nerves of the Socialists on the effects on the candidacy of the Minister of Health, Salvador Illa.
The formula chosen by the Catalan Executive for the postponement was not well received by the PSC either. In the words of its first secretary, Miquel Iceta, this is a “change in the rules of the game.” The decree of the Government “nullifies” the call for 14-F and announces that the new date “will be called to take place on May 30, 2021, after analysis of the epidemiological and public health circumstances.” Against that text, at least three appeals have been filed with the TSCJ. The Lliga Democràtica, one of the parties that has appealed, believes that it is an “abuse of power” and that is why its electoral rights are violated. In the Galician and Basque case, the call was postponed until “the declaration of health emergency was lifted.” The scale of the Generalitat is very interpretive and the Socialists, for example, were betting on a closer date.
As in Galicia and the Basque Country, the Catalan Government has also chosen to return to the starting box of the electoral process, whose liturgy is marked in detail in the LOREG to guarantee the neatness of the process. The PSC believes that they only had to do what they consider a “technical postponement”, that is, change only the campaign and voting date and leave the rest (census, candidacies, among others) frozen. This raises legal doubts, such as the passive electoral rights of people who come of age in recent weeks and who not only have the right to appear on the list of potential voters, but also to be elected (to be able to be in a list). The Generalitat does want the Central Electoral Board to validate some of the steps already taken, for example, the collection of guarantees made by Junts per Catalunya or the Partit Nacionalista de Catalunya. All in all, the door remains open to new lists and coalitions.
The forms of the decree are also in question and predict that the judicial journey will be extended in time. Pere Aragonès is now a president of the Generalitat in office and among its powers is not the power to call elections. The call in Catalonia is the result of the automatic process, as the time set by the Parliament to look for a successor to Quim Torra, disqualified for disobedience, passes. Aragonès instrumentally signed the convocation decree by virtue of the law, but technically he could not summon a new appointment with the polls.