“One of the distinctive features of the Spanish Constitution of 1978 is that all of it is interpretable and theoretically modifiable. There is no hard core beyond discussion, as occurs in other European constitutional texts. All Spanish architecture is interpretable and this makes the Constitutional Court (TC) an absolutely decisive body and subject to very strong political tensions”. These are the words of Vincenzo Cocozza, professor of Constitutional Law at the University of Studies of Naples Federico II, pronounced during a debate on the Catalan question that took place in Rome at the beginning of December 2014, now eight years ago.
The Spanish Constitution is what the Constitution says at all times, the Neapolitan jurist could have added, but he preferred to present it in a more nuanced and prudent way. He hit the nail on the head.
The fight for the interpretation of the Spanish Constitution began at dawn on December 29, 1978, the date of its publication in the Official State Gazette after being submitted to a referendum. There began what is taking place now in an absolutely stark way. The first person to learn that the presidency of the Constitutional Court was actually an electric chair was the jurist Manuel García-Pelayo, whose casting vote decided that the expropriation of Rumasa conformed to the Constitution. Date: December 18, 1986.
The expropriation of the Rumasa holding, owned by the Andalusian businessman José María Ruiz-Mateos, was one of the first far-reaching measures adopted by the first government of Felipe González, which had not included nationalizations in the PSOE's electoral program, thus marking distances with François Mitterrand's France. The expropriation was presented by the Minister of Economy and Finance, Miguel Boyer, a social liberal completely far from collectivism, as an essential measure to prevent the collapse of Rumasa from damaging the Spanish economy. Ruiz-Mateos, who ended up in prison, fought against the government, and a good part of the right joined the campaign against “socialist” nationalization. Well watered with money, the pressure campaign on the Constitutional magistrates was very aggressive. Months after passing the sentence, fed up with the threats received, García-Pelayo resigned, left Spain and went to live in Venezuela (the Venezuela before Hugo Chávez), the country where he had developed part of his academic career. He died in Caracas in 1991.
García-Pelayo's biography is interesting and exemplary. Doctorate in Law in 1934, generation of the Residencia de Estudiantes, he was an officer in the Republican army during the Civil War, chief of staff of the Toral group in the battle of Valsequillo, in Córdoba. Incarcerated in several concentration camps after the war, he was released and went into voluntary exile in Argentina in 1951 to practice as a lawyer. He later moved to Puerto Rico, finally ending up in Venezuela, where he developed a fruitful academic career as an expert in Political Law. King Juan Carlos encouraged him to be part of the first Constitutional Court. They were times of reconciliation. He was elected president of the TC in 1980, encouraged this time by Francisco Rubio Llorente. Six years later, they crucified him. Since in Spain everything is interpretable and there is no real consensus in the background, the Constitutional Court was already becoming the fourth chamber. A fearsome pressure cooker, as the Neapolitan jurist Cocozza would warn years later. Manuel García-Pelayo, former student of the Student Residence, official of the Republic, symbol of reconciliation, could not stand the smear campaign and went into exile again. Year 1987.
These are the background. The political tension in Spain is not a thing of two days ago. Felipe González, with all his sense of responsibility on his back, was also about to be lynched. Those are the background and we could dwell on what happened inside the Constitutional Court during the long and painful processing of the new Statute of Catalonia, and it would give us enough to write a gothic novel.
The Constitutional Court has definitely become the pressure valve of a Spain in which many more consensuses have been broken since the jurist García-Pelayo decided to voluntarily return to exile, fed up with receiving insults. More consensus has been broken and more forms have been lost. Whoever controls the court today can control the rhythms of politics in a country without clear majorities. Currently at stake is the revision of the legislative work of a coalition government that has been described as "illegitimate" by the extreme right and that has not been hand in hand in the last three years. And in the background, again, Catalonia.
On Monday, the Constitutional Court must resume deliberations on the amparo appeal filed by the PP against the amendments that modify the mechanism for the election of the members of the TC that corresponds to designate the Government. Last Thursday, the conservative majority of the TC did not dare to apply the roller to paralyze, for the first time since 1977, a vote in the Congress of Deputies. Put in check by the motion of censure announced by Vox with the support of Ciudadanos, Alberto Núñez Feijóo wanted his motion of censure to be the stoppage of a government initiative by solemn order of the Constitutional Court.
The magistrates did not dare to cross that line. We will see if tomorrow they cautiously annul the processing of the Congressional agreement in the Senate. The effects would be the same; the impact, different. On Tuesday, the General Council of the Judiciary meets to discuss its candidates for the TC. Monday and Tuesday they will determine if it is possible to carry out the renewal of the four members of the Constitutional Council with an expired mandate.
Then will come the demographic estimates on these days of fury, in a country where the polls play Yugoslav basketball. An excess of noise rarely helps the left, no matter how many passions the debate raises.
Pedro Sánchez wanted to risk concentrating at the end of the year, after the approval of the budgets, a series of measures likely to cause adverse radiation to the Government. The sedition offense modification is enriched uranium. The embezzlement crime review is distilled polonium. The Comprehensive Guarantee of Sexual Equality law is leaking. Sánchez has loaded the reforms of the Criminal Code in the broom car at the end of the year and that car is on fire today. There are no adjectives left in the Spain that made life impossible for the jurist García-Pelayo.
