Constitutional Court reproaches Mas for invoking fundamental rights to justify disobedience

MadridConstitutional Court has again signed a unanimous ruling putting an end to a run of disagreements between magistrates in recent months. Upholding the ruling against Artur Mas over the 2014 independence vote has again generated consensus, which has dismissed the former Catalan president's appeal for protection. It opposes all allegations and at one point in the sentence reproaches him for invoking the possible violation of some rights to justify his conduct of contempt for the orders of the Constitutional Court.

By the time the final appeal in a Spanish court came to an end, Mas had already served his sentence. On 13 March 2017 Catalonia's High Court barred Mas from office for two years and on 17 December 2019 the Supreme Court reduced it to thirteen months – by February 2020, the sentence had been served. Now the Constitutional Court confirms its fundamental rights were not violated.

Mas's conviction, along with and former ministers Joana Ortega, Irene Rigau and Francesc Homs, came for not having complied with the Constitutional Court's November 4, 2014 ruling, which called for the suspension of the 2014 vote. The former president claimed this constituted a violation of the right to political participation, ideological freedom and freedom of expression and assembly, but the Constitutional Court rejects it completely. The magistrates recall that at the time they made it clear that the Generalitat had no powers to vote on the independence of Catalonia and that, therefore, it could not invoke the right to participate in public affairs.

After reviewing previous rulings, the sentence concludes that this right has not been violated, "because it is not recognisable in either its content or its form in the process of citizen participation". However, this decision "does not have to produce a dissuasive effect on its legitimate future exercise through constitutional and legally established channels," the sentence states.

The judges go even further and emphasise that Artur Mas's condition as president of Catalonia makes it even less viable for him to claim the fundamental right to justify an "unlawful" action. As head of the Catalan executive, the magistrates say, he was obliged to a "constitutional loyalty" greater than any other citizen. "No right of this nature legitimises that the holder of an autonomous public power fails to comply with the obligations that the Constitution itself imposes on him: among them, following the resolutions of this court," the magistrates remarked.

The "concreteness" of the ruling of the TC

One of Mas's arguments before the Constitutional Court was the alleged violation of the principle of criminal legality, usual in this type of appeal, which is to denounce an extensive application of the law to harm the affected. The ex president argued that the order urging a halt to the vote was not specific enough and did not meet the "qualities of execution" necessary for its contempt to involve the commission of a crime of disobedience.

But the judges reject this. They consider that the order had the nature of a "judicial resolution" susceptible of integrating the criminal type of the crime of disobedience. That not complying with it was a crime is not an "irrational or arbitrary" interpretation, the magistrates argue. In addition, they understand that the court's order is "executive by antonomasia" and its content was "clear and determined", and thus refute the alleged lack of "concreteness".

No dissenting vote

The eleven magistrates of the Constitutional Court have agreed with Pedro José González-Trevijano's report and there were no dissenting votes. The divergence had become a constant lately in sensitive issues such as the state of alarm decrees to deal with the pandemic, the sentence on the siege of the Catalan Parliament, the conviction of the leaders of the independence bid, life sentences promoted by the PP and the suspension of parliamentary due to the pandemic. In most of these issues, the confrontation between the conservative and progressive blocs within the court has become visible. Not this time.