Heading for a constitutional collision: that is the current course for the two houses of the Spanish parliament, the Congress of Deputies and the Senate, after the People's Party (PP) this Tuesday gratefully took on board the strong criticisms of the amnesty bill made by the lawyers of the Spanish upper house and charted a route that will bring the two constitutional organs into conflict over the legislation aimed at ending Catalan independence-related prosecutions. The PP's line was announced by the party spokesperson in the Senate, Alicia García, who argued that the amnesty is, in reality, a "covert reform of the Constitution", which implies that "the defence of the state of law is at stake". The first step that the PP will take as a consequence is to "formally urge" Congress to "withdraw" the amnesty bill: that is how they will activate a mechanism that could end up in the Constitutional Court and that does not paralyze the processing of the amnesty legislation in the Senate. This path now opened by the PP comes in addition to the appeal on its alleged unconstitutionality that the party announced weeks ago, which would come into play once it was passed. The new plan, however, begins much sooner and brings the Constitutional Court into the middle of what the PP now alleges is a conflict between constitutional organs, asking the court to make a pronouncement in a situation limited by deadlines - and, thus, much faster.
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The PP's decision on how to proceed comes the day after the release of a report by the Senate lawyers which is very critical of the amnesty text and its procedural journey through Congress, a report which includes a kind of instruction manual indicating the route to be followed, step by step, to raise the issue to one of conflict between constitutional bodies. It is a mechanism that is regulated in the Spanish law governing the Constitutional Court and is foreseen for cases in which Congress, the Senate or the General Council of the Judiciary adopt decisions "assuming attributions that the Constitution" attributes to others. Sources from the PP in the Senate assert that this possibility has been under consideration by the party for days, but they acknowledge that the lawyers' pronouncement finally triggered it.
The opinion of the lawyers advising the upper house asserts that the conflict would be centred on a claim of "constitutional fraud", given that the amnesty "is undermining the constitutional attribution of the Senate in the processing of constitutional reforms". The argument is as follows: "The Senate is being asked to participate in a procedure that materially should be a reform of the Constitution", in which "there is a perfect bicameralism" and "the will of both chambers has the same weight in the final text of the law”, which is not the case with all other laws.
In this Tuesday's plenary session of the Senate, Alicia García reproached the Socialists (PSOE) for being "accustomed to resorting to fraudulent procedures in order to get away with it" and stressed that the PP "is not prepared to bend - in the face of their disdain". She also asserted that while the Venice Commission has recommended that the amnesty should be passed with a supermajority, the amnesty has a "slim majority in Congress and a large majority against it in the Senate". "Any Spanish government that had any dignity would withdraw this bill because it is the only decent way out", she replied. The reply from the Spanish government was given by the minister for presidency, justice, and relations with parliament, Félix Bolaños, who criticized the PP for trying to "turn the Senate into a delaying, obstructionist and confrontational chamber with Congress" and into a "brake on parliamentary activity". The minister argued that the PP's strategy has the sole intention "to please the far right a little so that it doesn't get angry". Later, as the chamber emptied, he expressed the tranquility of the Spanish government in the face of this manoeuvre and described it as "pure artifice".
The possibility (or not) of suspending the Senate's legislative processing
The lawyers' document clearly recognizes that an approach based on this type of conflict "does not paralyze the processing" of the bill in the Senate, since the course of action derives directly from the Constitution and the intervention in the conflict between constitutional bodies does not expressly mention a suspensive effect or the possibility of requesting interim injunctions”. Sources from the Senate's Bureau, its governance organ, insist that a conflict between constitutional bodies "neither paralyzes nor slows down" the proceedings. However, the lawyers also point out in their text that "a request to the Constitutional Court for interim measures could be made asking that, exceptionally, they be admitted considering the urgent and extraordinary circumstances", since if it were not adopted, there would be a "irreparable damage" done to the powers of the Senate.
The Constitutional Court could pronounce in August
What path, then, needs to be taken to pursue the issue as a conflict between constitutional organs? The first step must be taken by the PP, which this Wednesday will present the text justifying its motives. Then, the Bureau will have to rule on this, in an extraordinary meeting which, according to sources from the governance body of the Senate, will be called for next week (that is, Easter week). Next, the PP estimate that at the plenary session on April 2nd, the conservatives' request will be voted on and passed. This will set the calendar in motion:
- Congress will have one month to respond to the Senate's demand: the lower house can ignore the senators and remain silent, or withdraw the bill. It will have until the beginning of May for this.
- If after this month, Congress has not rectified, or has responded that it has acted legitimately, the PP will have one further month to bring the conflict before the Constitutional Court. In this case, it would be the Bureau, without the need for the plenary of the Senate, who would take the decision. It is to be expected that the PP will not waste any time in taking this step.
- When the appeal reaches the Constitutional Court, that court - after a margin of ten days - will have to set a deadline of one month for Congress to present arguments and transfer the matter to the Senate and the General Council for the Judiciary (CGPJ). This would bring the calendar to mid-June.
- In addition, the Constitutional Court will be able to set a period of thirty more days to present information, and seek clarifications that will end in mid-July.
- Finally, the constitutional judges will have one further month to make a decision and determine "to which body the controversial constitutional powers correspond". Therefore, the first theoretical calculations place a final pronouncement by the Constitutional Court in August.