The magistrates of the Constitutional Court Juan Carlos Campo and Ramón Sáez argue that the majority decision of the guarantees body to reject the amparo appeal of the Ombudsman against the suspension of the vote of those nationalized by the 'grandchildren's law' agreed upon by the Supreme Court carries "serious consequences" and constitutes a "failure" for not safeguarding "the fundamental right to vote".
In their dissenting vote, which Europa Press has accessed, they express their "disagreement" with the resolution and with the reasoning of their ten colleagues, who considered that the appeal was premature while the procedure before the Supreme Court is ongoing.
Campo and Sáez understand that the TC's decision "has not been able to extract the consequences that the exceptional nature of the matter offers in terms of guaranteeing the fundamental rights affected by a judicial decision, serious consequences that should have guided the direction of the resolution to admit the Ombudsman's claim" and thus "debate in depth the elements of the case and the constitutional validity of the mass suspension in the context of precautionary protection of a basic fundamental right of the democratic rule of law".
"One can only lament the failure of our constitutional legal system to provide a channel that effectively preserves the fundamental right to vote of tens of thousands of citizens, children and grandchildren of the exile caused by the civil war and the dictatorship, in the general elections called for next November 29," they add in their dissenting document.
The two magistrates emphasize that the issue raised by the Ombudsman presented "constitutional significance" due to "the nature and relevance of the invoked rights", because of the "unprecedented nature of the judicial suspension as a precautionary measure of the voting right of tens of thousands of citizens", and due to the action taken by the institution headed by former minister Ángel Gabilondo.
In their view, the case "required a rigorous analysis of compliance with the procedural requirements that open the way for constitutional amparo", as it is, they emphasize, "a case that marks the history of a constitutional court".
However, they reproach that, "far from it", the majority of the Plenary "makes a formalist interpretation", which "contravenes the jurisprudence" of the TC itself "on the necessary exhaustion of the means of appeal provided by procedural rules before resorting to protection" and deviates from the doctrine on the admission of appeals against precautionary measures that limit fundamental rights.
Missed opportunity and doubts about the role of the Defender
The magistrates recall that the resolution also deviates from the constitutional doctrine regarding the admission of protection appeals against precautionary measures that restrict fundamental rights, and they focus on the specific role of the Defender of the People.
"All this with the added, no less important, fact of not dedicating a single line to analyze the peculiarities posed by the exercise of this action by the Defender of the People, to whom the Constitution attributes institutional legitimacy to resort to this Tribunal with its own profiles, missing the opportunity to develop our jurisprudence in an area that was until now unknown to it," they point out in the dissenting vote.
From their perspective, the decision adopted "subjects the exercise of the action" that the Magna Carta recognizes for the Defender of the People "to total procedural uncertainty, almost definitively burying the possibilities of that institution resorting to this tribunal in the exercise of a power that the constituent power attributed to it".
They also consider that a "unique opportunity" is "missed" to advance in an integrative and finalistic interpretation of the admissibility requirements of constitutional protection in cases of massive infringement of fundamental rights.
"Therefore, if the present protection appeal is premature because the Supreme Court can modify the precautionary measure agreed upon in light of the allegations of the interested parties who appear, then all protection appeals filed against precautionary measures are premature. An intolerable conclusion," they argue.
According to Campo —former Minister of Justice— and Sáez, "neither the summons of those affected to formulate allegations about the agreed precautionary measures, nor the interlocutory nature of the challenged resolutions, nor the fact that they have not yet been executed by the Administration allows, as the order states, to consider the protection appeal premature."