The TC focuses on parliamentary law the appeal of deputy Rodríguez, by Ernesto Ekaizer

Judge María Luisa Balaguer, of the first section (first chamber), ofl Constitutional Court, will be the speaker at the appeal of the Canarian deputy Alberto Rodríguez ceased last October 22 by the president of the Cortes Generales Meritxell Batet. Judicial sources indicate to this newspaper that, likewise, an expert lawyer in parliamentary law has been appointed, who will prepare the preliminary report for the presentation.

This last decision assumes, therefore, that the center of the appeal is the challenge to the Batet decision. In other terms, as the same resource admits, the responsibility is “very personal & rdquor; de Batet, who “will not be able to blame the Supreme Court & rdquor ;, whose sentence condemned the Canarian deputy to prison for 45 days (replaced by a fine of 540 euros), and an additional penalty of 45 days of disqualification from exercising passive suffrage (standing for election or public office during that period).

However, the president of the Cortes Generales referred to said sentence her decision to deprive Rodríguez of his seat two years before the end of the legislature and not suspend him for forty-five days.

Thus, at the center of the constitutional debate is the fundamental right of right to the job parliamentary, the power of a parliamentary office. In this case, Alberto Rodríguez has been elected by a legislature and half of it has been deprived of his seat. And that dismissal can only be justified by an express, express and motivated judicial decision.

That judicial resolution did not expressly say or motivate what Batet decided to dispossess the deputy of his seat. The proof of this is that the lawyers of Congress reported on October 18 that the “extracriminal” consequence was not derived from it; to deprive the deputy of the seat.

Clarification to the president

Precisely, to clarify the scope of the resolution, Batet, who endorsed, according to the minutes of the meetings of the Board, the report of the lawyers, asked the president of the Second Chamber, Manuel Marchena, for a clarification on October 20 , and president of the court that issued the sentence, on the execution of the same. On the 21st, Marchena replied that the law “does not include among the functions of the Supreme Court that of advising other bodies.” A day later, Batet, with the verbal backing of the general secretary, who had changed his initial position, sent a letter to the Central Electoral Board requesting the replacement of Rodríguez and communicated it to the Supreme. So the deputy was charged.

Although the center of the debate is going to be parliamentary law and how far the capacity of the President of the Cortes goes to dismiss a deputy without opening a procedure and send the matter, for example, to the Commission of the Statute of the Deputy, as proposed At the meeting of the Congress Table, the first secretary, Gerardo Pisarello, Batet’s conduct did not fall from the sky.

Why, if what Marchena formally asked him for was the “start date of the disqualification for the purpose of the corresponding settlement of the sentence” Batet did not respond exactly providing that date?

Because on the occasion of the debate at the Congress Table, on October 19 and 21, 2021, Vox bombed Batet with the ghost that he was going down the path of Carme Forcadell, the president of the Parliament of Catalonia. That is, the ghost of disobedience to a judicial resolution.

Between the pressure of Vox and the Popular Party, on the one hand, and that of Marchena, on the other, Batet saw a possible opening of proceedings for disobedience in the Second Chamber of the Supreme Court, a situation in which as president of the Cortes Generales He would have to resign, even if those proceedings were a trip to nowhere because the Supreme Court ruling did not propose depriving Rodríguez of the seat.

personal decision

It was, therefore, a personal political decision before a horizon in which Batet envisioned the end of his political life. A court of law imposes a de facto resolution on the president of the Courts that she is not empowered to adopt either because of what the sentence says or because of the personal summary execution procedure adopted.

Is it reasonable for the Supreme to hide behind the fact that one of its functions is not to advise other bodies?

Both the organic law of the judiciary and the Constitution establish for the courts the function of judging and enforcing what has been judged. If the president of the sentencing court has the opportunity to clarify how to execute the sentence, this does not mean advising. What reason is there for not doing it? Why does the president of the Cortes have to guess how Marchena wants her to execute the sentence?

A few days later, the prosecutor of the Supreme Court, Elizabeth Rodriguez, Before an appeal for annulment, Rodríguez stated that “the Second Chamber of the Supreme Court will carry out a settlement of the sentence… which will be communicated to said Congress and which means solely and exclusively that during the period of one month and fifteen days established in such liquidation, Mr. Rodríguez will not be able to run for public office. No more, no less.”

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And on December 17, 2021, the sentencing court considered “reasonable & rdquor; and an “extracriminal consequence of the conviction & rdquor; the deprivation of the seat executed by Batet.

The outcome of ordago of Marchena it is the illustration of what the jurist and professor emeritus at the University of Konstanz, Bernd Rüthers, described in his book, published in 2016, as the expansion of the political power of judicial institutions. ‘Die Heimliche revolution vom rechtstaat zum richterstaat’ (The secret revolution from the rule of law to the judicial state).

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