The Constitutional eliminates the norm that allowed to prevent a motion of censure if it depended on the vote of a traffic | Spain

The Constitutional Court has eliminated the Organic Law of the General Electoral Regime (Loreg) a rule that allowed to prevent a motion of censure if it depended on the vote of a traffic. He case It was raised by the Superior Court of Justice of Cantabria (TSJC), which filed a matter of unconstitutionality following an episode occurred in the town of Arredondo (477 inhabitants). The controversy occurred after a councilor who had abandoned the party for which he had been elected to be among the drivers of a motion of censure directed against the mayor, with whom he had attended the same lists. The initiative to replace the mayor, however, was prevented with the argument that it was unfeasible in application of an article of the electoral law. The guarantees organ has now considered it unconstitutional.

The precept in question is included in article 197 of the Law, which establishes how censorship motions against mayors must be presented and developed. The second paragraph of article 197.1.A determines that “in the event that any of the proponents of the motion of censure form or have been part of the municipal political group to which the mayor belongs whose censorship is proposed”, the majority required for its presentation “will be increased in the same number of councilors who are in such circumstances”. The application of this rule modified the absolute majority of members of the Consistory required to promote the motion. In short, the support of one more councilor was needed to reach the quorum to present the initiative, since the mayor and one of the proposed councilors had been part of the same party.

The Constitutional exposes in its resolution that in the case of the town of Arredondo, and in any other that is in the same circumstances, the application of said norm implies “the practical impossibility of promoting the motion of censure”. Hence, the guarantee body has decided to expel the paragraph from the legal system, to injure article 23 of the Constitution, regarding the right to political participation. This article establishes that all citizens « have the right to access public functions and positions, with the requirements indicated by laws. »

The sentence – of which magistrate María Luisa Balaguer, of the progressive sector of the Court has been speech – explains that the unconstitutionality of the annulled precept is due to the fact that it is a rule that « is disproportionate », because it implies the « restriction of the powers of political control that are part of the right to the exercise of the public office of the mayor. » The ruling states that « even recognizing the constitutional need and suitability of the legislative measures to control the phenomenon of transfuguism, the Court considers that the limitation contained in the Loreg regarding the presentation of censorship motions to the mayor, in the cases in which the proponent had belonged or belonged to the same municipal group as said mayor, is disproportionate. »