High Court opposes postponement of elections because measure not foreseen by state of alarm

On Friday, Catalonia's High Court overturned the decree of postponement of the elections and maintained the February 14 date. This Monday, it has notified the sentence to all parties, including the Catalan Government, in which it explains the reasons for its decision: one of the main ones is that the current state of alarm, approved in the Congress of Deputies, includes the explicit possibility of holding autonomic elections, as foreseen in the last decree of the spring under which elections were held in Galicia and the Basque Country on July 12.

"The state of alarm expressly considers that elections can be held in the current health emergency, so that does not enable an authority to dictate a postponement of the electoral process convened for reasons of force majeure," says the ruling. It adds that, only if it were provided for in the general law, it would be possible for the Generalitat to call off elections, which, it points out, is not the case here either.

The court also differentiates the current situation of the Generalitat from when elections were postponed in March 2020 in Galicia and the Basque Country, right at the beginning of the pandemic. "[The situation] erupted in a supervening and unforeseeable way and created a situation of material and legal impossibility for the holding of the elections that is not appreciated here," says the ruling, despite the fact that the Generalitat, in its allegations, has warned that to guarantee the right to vote the best thing is to postpone the vote until May 30. It also notes that when the Basque and Galician presidents, Iñigo Urkullu and Albert Nuñez Feijóo, suspended the elections, the state of alarm in force allowed home confinement. A restriction that the current decree does not allow.

The magistrates add that the knowledge of the pandemic after so many months and the measures that can be taken are greater than in March last year to prevent contagions. "The regulatory framework and the factual situation that justified the suspension in March 2020 does not occur today, so it can not be taken as a precedent to determine the competence of the authority that calls the elections," recounts the judicial resolution. In other words, it warns the Generalitat that it cannot take refuge - as it had done in the decree and in its reports - in the case of Galicia and the Basque Country to postpone the vote.

Aragonès is not competent

Another of the key points of the argumentation of the Court is that Pere Aragonès is not competent to call off the elections. It recalls that the power to call elections, which presidents have, does not automatically imply the power to call them off (as the Legal Advisory Committee or the Legal Services of the Generalitat had argued), since it implies an intervention in the electoral process that may affect both its "impartiality" and the fundamental right of political participation. Consequently, the court also considers that the vice president, Pere Aragonès, who serves as deputy president, did not have the power to postpone the elections.

The Court rules out that the decree of automatic call of December 22, 2020 gives protection to the Generalitat to postpone the elections, despite the fact that in the preamble contemplated this possibility. It considers that it has no legal value and that, equally, it was the Spanish government that would have to authorise a postponement. It also questions the "impossibility" of holding the elections,

"Intense" limitation of the right of suffrage

The "intense" limitation of the right of suffrage and political participation is one of the other arguments the High Court gives to oppose the decision of the Generalitat. If the elections were postponed until May 30, the court believes that it would open a "prolonged period of provisionality in the functioning of the democratic institutions of Catalonia, without a constituted Parliament and with a government with a vacant presidency, which means that members cannot be dismissed during this time," the sentence highlights. In this sense, it states what parliamentary parties already knew when they decided not to elect a new president and that the elections would fall in the month of February, despite the possibility of a resurge in cases.

The Court also explains it overturned the decree due to the date chosen by the Generalitat: May 30, after "assessing" the health conditions. "It is not determined which are the epidemiological indicators that will be taken into account to decide the new call and without a forecast that offers guarantees of certainty about the epidemiological situation," say the judges.

Private vote

As already happened when the High Court decided to maintain the precautionary suspension of the decree to postpone the elections, there is a dissenting vote in the sentence. It is the magistrate José Manuel de Soler Bigas, who believes that after reviewing the documentation provided by the Government an effect on public health "cannot be ruled out" if the elections are held.

In addition, using the recent presidential elections in Portugal as an example, he believes that there may be a drop in participation that affects the "quality" of the outcome of the elections, since there is a "risk", he says, that infected people will not vote and others who will not do so because of the risk of becoming infected.