The Constitutional Court and the Parliament's Bureau

A recent ruling by the Constitutional Court has once again highlighted a legal issue in our legal system: do the presiding boards of Parliaments have an obligation to carry out a substantive review, in general, of the unconstitutionality of the motions for resolutions presented by different parliamentary groups? Indeed, the First Chamber of the Constitutional Court, in a ruling of February 23 of this year, annulled the agreements to admit for processing by the Bureau of the Parliament of Catalonia of some draft resolutions presented on the occasion of the debate on the general political orientation of the Government in September 2022. Some sections of these initiatives recognize the legality and legitimacy of the referendum of October 1, 2017, which could be interpreted as involving recognition of the eventual existence of possible legal effects, which could be subject to constitutional review. However, other sections were limited to expressing mere political objectives, such as those that urged the Government to develop its own competences, in order to reduce economic and political dependence on the Spanish state, for the purpose of preparing the exercise of the right to self-determination; those that urged strengthening the economic, fiscal, and financial sovereignty of the Generalitat; those that proposed laying the foundations for a constituent process; those relating to the objective of internationalizing the national reality of Catalonia, and those that referred to the advisability of acting with sovereignty, beyond constitutional and statutory limits, in guaranteeing the basic social rights of the majority of the population in different sectors. In all these latter cases, only a mere political declaration is expressed that could hardly be interpreted as involving any legal effect, in the sense of its impact on the creation, modification, or repeal of legal norms. It is not superfluous to recall that the bureaus of the Parliaments are bodies for directing parliamentary work. Thus, the bureau of the Parliament, as a collegiate governing body of the Parliament and made up of the president, two vice-presidencies, and four secretariats, exercises parliamentary functions, budgetary functions, and functions relating to the organization of the chamber's administration. The exercise of the bureau's parliamentary functions focuses on the qualification, admission for processing, and decision on the processing of parliamentary documents and writings.

There is consolidated doctrine of the Constitutional Court on the powers of the Parliaments' boards regarding the admission and processing of parliamentary initiatives (for all, STC 24/2022). From this doctrine it is inferred that these admission powers are, as a general criterion, for the purpose of controlling the formal or procedural regularity of the initiatives. Exceptionally, in cases of evident unconstitutionality, the boards have the power, but not the obligation, not to admit the initiatives for processing. Consequently, only in exceptional cases, when the unconstitutionality was clear and indisputable, would the boards have the power to materially analyze the initiatives and not admit them for processing. In some even more exceptional cases, this power becomes an obligation: this would be the case when there is a clear breach of what the court has already ruled. A clear example of this latter case would be when the Constitutional Court has annulled an act and, as a consequence, has made personalized requests to the members of the committees, as happened in the case of the Catalan process.

The relevance of the ruling of February 23 lies, among other considerations, in the fact that it extends the obligation not to admit motions that could be interpreted as unconstitutional. This obligation would derive from rulings of the court relating to resolutions, adopted in other legislatures and in a different context, which would involve precedents in areas such as the demonstration on the sovereignty of Catalonia and the exercise of the right to self-determination, the effects of which would have been annulled by the court. This interpretation raises difficulties of extrapolation to material areas other than self-determination. Indeed, this consideration would oblige the Parliaments' boards to a material analysis of new parliamentary resolutions, when it could be interpreted that they have a link with previous rulings concerning the areas declared null and unconstitutional by the court. At the same time, it would oblige the boards not to admit them for processing if, as a result of this analysis, their unconstitutionality is concluded, once their adequacy with the court's previous jurisprudence has been contrasted. This assessment entails the attribution to the Parliaments' boards of materially jurisdictional functions alien to their nature, and it can be interpreted as contrary to the court's previous jurisprudence regarding the powers of admission for processing of the boards, which established, exceptionally, a power in this regard, but not an obligation; also with regard to the representative functions of the plenary session, in which the different political forces can express their conceptions and citizens can know them, and, finally, with regard to the right of political participation of deputies, which would encompass the defense of political objectives contrary to the Constitution, provided that their eventual execution is channeled through the norms of the legal system. It therefore seems that the context of the Catalan process has probably influenced and still influences the interpretation, by the Constitutional Court, of draft resolutions that merely propose political objectives, without any discernible effect on the legal system.