Congress is preparing, more behind the scenes than officially, for the scenario in which the Supreme Court will be able to decide this Thursday whether to review its precautionary measures and send the still MP José Luis Ábalos, former number two of the PSOE, to prison. It would be the first time in this Democratic phase that a sitting member of Congress went to prison. The Chamber would suspend him as a deputy, but could not withdraw the minutes. The Council and various parties have studied various precedents on the possibility that this situation could change and reduce the absolute majority of the Chamber, even if in principle several sources consulted prefer not to change anything.
The debate on what could happen on Thursday in Congress, where the deficit path of the budget project will also be voted on – with very little possibility of adding deputies to succeed – takes place more in the corridors than in the official and formal meetings, neither of the Council nor of the Council of Speakers. What is clear are the first steps to be taken.
The Council of Congress should first receive a communication from the Supreme Court regarding the preventive detention of Ábalos and would convene to officially suspend him from his duties. Article 21 of the Congress Rules establishes in its second paragraph that deputies will be suspended from their parliamentary rights and duties when, “once authorization has been granted at the request of the Chamber and the committal order has been signed, they find themselves in a situation of preventive detention and for the duration of this”. And from that moment on he will no longer be able to vote, nor participate in parliamentary activity, nor belong to a group in the Chamber, nor will he receive any financial compensation; i.e. your salary and the rest of the benefits.
The point is quite clear, but it remains to be clarified whether this hypothetical suspension changes the majority of the Chamber, now made up of 350 deputies and constituted in 176 minutes. Neither the Table nor the parties that now make up Parliament have officially raised this discussion, but it travels through the corridors of the Cortes, to the point that some spokesmen have even commented that a report on the subject would be commissioned from the college of jurists of the Congress. That decision has not been adopted nor is it contemplated for now, among other things because what there is is precedent to rely on when the time comes.
The spokesperson of the PSOE, Patxi López, commented on Tuesday, before entering the plenary session, that the alleged change in the majority of the Chamber had not “crossed his mind” and that in due course what the Council decides will be done according to the Rules of Procedure. This rule, with the force of law, does not specify this scenario but jurists have summarized the most similar precedents to conclude that there are positions for all tastes, but only two options.
In 1989, after the third general elections won by the socialist Felipe González, the Chamber could not be established at first because 18 deputies elected from different provinces appealed to the PP awaiting a judicial solution and four of Herri Batasuna did not fully assume their status because they refused to respect the Constitution “by legal imperative”, something that the then president of the Cortes, the socialist Félix Pons, he rejected. 332 deputies participated in the investiture. The plenary session was constituted with an absolute majority of 167 seats, which were those added by González in the first attempt. The HB four were considered “absentees” and did not return to Congress, and González served the remainder of the legislature with a House majority of 175.
The other situation similar to the study, which is the one that today gives the greatest signs of recovery, alludes to what happened in June 2019 in full processes with the suspension of four Catalan pro-independence deputies and which was resolved with the decision of the Council, after a report from the lawyers, in the sense that it should have no effect on the counting of seats for votes.
This report, which is the one we now intend to take into account, contained an explanatory paragraph with its conclusions: “According to the precedents, the situation of suspension of the deputy in his rights and duties must be differentiated from the failure to acquire full office, as well as from the loss of said condition. Therefore, it must be understood that the suspended deputies retain the status of members of the Chamber and, consequently, must be counted for the purposes of its composition set at 350 from the day of its Constitution, without prejudice to the number of votes necessary to reach the absolute majority (176) and the rest of the special majorities established by the Constitution, by the organic laws or by the Regulations of the Congress.
Then the PP and Ciudadanos refused to lower the bar to achieve an absolute majority. Now no party has asked for it either. In this regard, political and parliamentary sources have underlined that very few votes on important laws have required an absolute majority in this 15th legislature, just half a dozen, and it is not clear after the political clash in Junts that from now on there will be many more.
