The Supreme Court once again insists on curbing the intention of the opposition parties to prosecute some of the most important political decisions of the coalition government, such as the appointment of Dolores Delgado as state attorney general. This Thursday he gave a similar answer to the attempt to neutralize pardons granted to the former vice president of the Generalitat of Catalonia Oriol Junqueras and the rest of those convicted of sedition in the cause of 1-O in Catalonia. In both cases, the judicial route is closed completely by lack of active legitimation of political parties who appeal these decisions before the high court.
In this way, the decision on pardons becomes a new wake up call in the face of any intention of the parties to try to make the Supreme Court become a new legislative Chamber by reviewing both the Government’s decisions and the results of the parliamentary votes in which they remained in the minority and, therefore, do not share. In the records on Delgado’s appointment, the Supreme Court has already warned the parties that the function of control to the Government must be channeled in the General Courts and not in the courts
On that occasion, the Chamber did not miss the opportunity to point out that its own jurisprudence was overwhelming when declaring that “in general, the active legitimacy of political parties does not concur, to challenge any action of the different Public Administrations, and of the corresponding Governments, of the State, of the autonomous communities and of the local entities , which they consider to be in disagreement with the legal system, except for those actions that affect the sphere of their legitimate rights and interests“.
Disagreeing is not enough
According to the Supreme Court, the basis of legitimation is linked to effective judicial protection and, therefore, “it is not enough to disagree with an act” or consider that it is not in accordance with the Law to proceed with its challenge. It adds that “it is also necessary that there be a concrete and determined relationship between the subject who formulates the appeal and the object of the process.”
On that occasion, he elaborated that the political function of the parties “is not enough, by itself, to confer legitimacy in the challenge of any act that may have political relevance or that may be considered a ‘political act’, if there is no specific and concrete connection with its performance or functioning as a political party, in short, within its sphere of rights and legitimate interests”.
Even more, it ruled that the general recognition of the procedural action against political parties cannot be successfully sustained, no matter how relevant its constitutional function may be“.
In relation to the pardons, the Supreme Court will not analyze their legality due to the lack of active legitimacy of Vox, the PP, the leaders of Ciudadanos and the rest of the appellants, although the decision has not been unanimous because two of the members of the Hall have voted against. The same thing happened in the case of Delgado, not all the Section to which the matter corresponded agreed with the restrictive criteria of the majority.
Until Delgado’s decision, the most important precedent on legitimacy was marked by the judgment of March 2014 that prevented the PSOE from resorting to the so-called Fiscal Amnesty. On that occasion, the Supreme Court was very blunt in affirming that the fact that the parties are the channel of political participation and concur in the formation of the popular will is not enough to confer legitimacy on them to challenge any administrative activity.
It was said, as it will predictably be insisted now on the occasion of the ‘procés’ pardons, that it is necessary for the contested measure “to have repercussions, directly or indirectly, but in an effective and accredited way in the sphere of the political party itself, and not hypothetically, abstractly, general or potential”.
Strategy also before the TC
At this point it is worth noting the number of appeals that some judicial bodies accumulate against the Government by parties such as Vox, which has presented numerous initiatives before the Constitutional Court (TC) against provisions of the Government since it achieved the 52 deputies in Congress that allow him to go to this body with appeals of unconstitutionality. Before judicial bodies such as the Supreme Court, the National High Court and ordinary courts He has been there more than thirty times.
Among other issues, the TC magistrates have Vox resources on the table the oath formulas of some parliamentarians in the constitutive plenary session of the Congress; several decisions of the Bureau of this body to process proposals such as the abolition of inheritance tax; several regulations approved by different autonomous communities to combat the pandemic; the educational reform and the so-called ‘Riders law’, in addition to the euthanasia law.