Collateral victims of the 'war' between Supreme and Constitutional

The interlocutory order of the Criminal Chamber of the Supreme Court that has applied the amnesty to Dolors Bassa, Jordi Turull, Oriol Junqueras and Raül Romeva is nothing short of a declaration of war. The Supreme Court says it has felt undermined by the Constitutional Court because the latter has “expanded” to limits “unprecedented in its history” its function as a guarantor of rights, even accusing it of “mutating” its role to become “a final instance with the capacity to review the interpretation of any legal norm subscribed to by the Supreme Court”. 

The war is not new, however, and has to do with the difference that exists between the predominantly progressive configuration of the Constitutional Court, which is not part of the Judiciary, and a Supreme Court with a conservative majority, as a reflection of this hegemonic trend among Spanish judges. Hence the maneuvers these days to close the electoral lists in the Senate, on which depends the renewal of four of the current magistrates of the TC, even if it is more than a year late. 

The war, furthermore, does not stop having battles as or more bloody periodically. The latest, the amparo appeal filed by the Ombudsman, Ángel Gabilondo, before the Constitutional Court to stop the suspension of the right to vote of 163,000 citizens naturalized abroad under the well-known grandchildren law, in response to the precautionary decision of the contentious-administrative chamber of the Supreme Court to exclude from the electoral census these new Spanish nationals who have not directly demonstrated being descendants of political exiles, since an instruction from the Ministry of Justice addressed to the consular corps established a presumption favorable to registration given the material impossibility of proving the political causes of an exile produced 70, 80 or 90 years ago.

In the midst of the pre-campaign, the Constitutional Court has nevertheless declared this appeal inadmissible, with the argument that it was premature because the ordinary judicial path had not been exhausted. In fact, according to some sources, the TC did not wish to take on another hot potato from the Supreme Court again. It is, it goes without saying, a sensitive issue, in which the Spanish right and far-right have a lot of interest, by the way. In the worst Trumpian manner, they have prejudged that the 29-N elections will not be legitimate if the grandchildren law is applied, which they consider a ploy to manufacture progressive votes through the path introduced in the eighth additional provision of the 2022 Democratic Memory Law –already provided for in the 2007 Historical Memory Law–, which attributes the nationality and, therefore, the right to vote to those “born outside of Spain to a father or mother, grandfather or grandmother, who had been exiled for political reasons, had lost their Spanish nationality, or had renounced it”.

It is one thing, as Jordi Muñoz aptly suggested in these very pages Jordi Muñoz, that, regardless of short-term electoralist and conspiracy-driven controversies, there should be a debate about whether or not it is reasonable to grant nationality and the right to vote to people who have never resided in a country. And it is another thing that this is by no means unprecedented: since 2007, there have been more than thirty parliamentary initiatives in Spain to extend nationality to different groups of descendants of Spaniards, the latest addressed to those who were residents in the Sahara until September 29, 1977.

What has reignited the controversy is the fact that when the Supreme Court agreed to the precautionary suspension of the grandchildren's law at the request of Vox and Iustitia Europea, it did not anticipate that elections would be called and that the census would legally close on August 1, 2026, by which time several thousand of those naturalized had already been registered in the census. Under these circumstances, the Supreme Court decided to maintain the suspension, arguing that there is a real risk of altering the census by incorporating people whose exact traceability is unknown. Unfortunately, the Supreme Court has not considered the stability of the census and the exercise of the right to vote to be priorities in the midst of a legal dispute that has not yet been resolved. And the Constitutional Court has not had the opportunity to correct it, as it has pushed this bitter chalice away from itself for apparently formal reasons.