The legal community believes the dissolution of parties due to “disloyalty” to the system is unconstitutional

The proposals of the PP and Vox to question the survival of political parties that incur in assumptions of “constitutional disloyalty”, in the first case, or to criminally prosecute those who negotiate “with convicted people” have been received with surprise and great reservation by of the legal community. The most widespread criterion, if not unanimous, is that these proposals would alter not only a consolidated practice of tolerance in political relations, but also 180 degree turns in the conception of the democratic organization endorsed by the Constitutional Court, to the extent that It has always defended the legality and political participation of organizations whose ideology is in complete disagreement with the text of the Constitution itself.

The jurists consulted by EL PAÍS estimate, on the other hand, that the illegalization of a party can only be the result of an initiative taken by the Government, through the State Attorney's Office, or by the Attorney General's Office, as occurred in the case of Batasuna and other related organizations linked to ETA. Also the Congress and the Senate – where the PP now has a majority – are legally capable of requesting the outlawing of a political force. There is no evidence, however, that the PP has considered the hypothesis of taking the initiative in this regard.

Regarding the viability of the proposal, Marc Carrillo, professor of Constitutional Law at the Pompeu Fabra University, states that “constitutional disloyalty, expressed in these terms, cannot be a reason for legal repression because the Constitution provides coverage for political expressions that can be “not respectful of the constitutional text itself.” Carrillo recalls that on repeated occasions the Constitutional Court has said that the Fundamental Law does not establish a system of militant democracy. “This means that any political option is protectable with the only limit of the practice of violence,” he explains.

Carrillo specifies that “something different is the current absence in the Penal Code of a type of crime that provides for attacks on the Constitution, understood as attacks on the Constitution the violation of the constitutional procedures established by the supreme norm to adopt political decisions, as occurred with the disconnection laws in Catalonia.” He adds that this is a gap that the legislator should fill in the future. In any case, he emphasizes that the solution is never the illegalization of parties. “No matter how unworthy they may be, ideas cannot justify the outlawing of a party if there is no incitement to violence through the daily practice of an organization,” he says.

Likewise, Juan María Bilbao, professor of Constitutional Law at the University of Valladolid, considers that the PP proposal “is unconstitutional because our democracy, as the Constitutional Court has recalled many times, is not militant, and therefore any political project, as long as “It is defended peacefully, without violating the freedoms and rights of other citizens, it fits within the constitutional framework.” Bilbao explains that the Constitution also protects those who deny it, and that this is an undoubted doctrine of the Constitutional Court until now. He adds that there are those who defend “changing the chip” and adopting “a model like the German one, in which the legality of parties contrary to the system is excluded”, but he emphasizes that “this is the German model, it is not ours.” . “We have an open democracy, based on political pluralism,” he explains.

Juan María Bilbao's conclusion is that “this type of proposals has a difficult time fitting into our Constitution, as the Constitutional Court has understood it.” The reason is that “parties cannot be outlawed due to their ideology or political program. And not because of a generic idea of ​​disloyalty.” In this sense, he emphasizes that “the law on political parties of 2002 only contemplates one very specific case of illegalization, which is complicity with a terrorist organization, but it makes it very clear from its statement of reasons that it is not about excluding ideas but to sanction behaviors, acts.”

Bilbao emphasizes that this is the assumption that was applied in other times to Batasuna and other left-wing formulas abertzale, after judicial accreditation that these political formations were related to terrorism. This allows, he adds, for there to be pro-independence and republican parties in Spain that not only operate in politics and occupy parliamentary seats, but also govern. The concept of constitutional disloyalty, he explains, “is very ethereal” and “we would have to see how it is accredited, which allows us to say as a first impression that it is a crazy purpose.”

Javier Tajadura, professor of Constitutional Law at the University of the Basque Country, also considers that the criminal figure of calling an illegal referendum can be reintroduced into the Penal Code, a decision that “would not generate constitutionality problems.” He adds that in his opinion it would be “necessary” to cover the gap generated by the suppression of the crime of sedition, because “there is no criminal offense today for those attacks against the constitutional order that do not involve the illicit use of violence or force.” ”, But he specifies that the problem arises from the proposal to dissolve the parties whose leaders have incurred such criminal offenses. “The dissolution may be disproportionate,” says Tajadura, “and I see that it may be debatable from a constitutional point of view to carry that penalty, but not the regulation of these crimes, in which I see no problem.”

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