Friday, September 22

Laura Borràs: uncertainties

The opening of the oral trial against the former president of the Parliament of Catalonia, Laura Borràs, who has already been suspended from her functions as deputy, has generated -and will generate- intense debates, where unfortunately coarse words will cover up what should be a rational debate and serene, with perhaps debatable conclusions, but not deserving of the expulsion to Hell of whoever formulates them. Some call this debate democratic debate.

As Oriol Solé in his detailed piece last Friday made the most relevant content of the criminal case quite clear, I will focus on some of the points that may have more relevance both in its judicial aspect and in the reflection of it in Catalan politics and possibly Spanish.

First of all, the facts have been known for a long time. When Laura Borràs was a deputy in Congress, she was summoned to testify before the Supreme Court and, exercising her rights, she refused to do so. She was 2019. But before that, as a Counselor, she also knew -and we knew- about the case. When she was elected President of Parliament – an unusual decision that the No. 1 of the minority party of a coalition is not the vice president of the government that is formed – she was well known for her judicial avatar. When she was elected president of JuntsxCat less than 100 days ago -despite not being the most voted member in the congress of her formation-, her judicial transit was totally public. Therefore, there is nothing surprising that it now opens oral trial for crimes of falsehood in public document and prevaricationcrimes for which, in addition to a strong disqualification, the prosecution asks for six years in prison.

Not long ago, in these same pages, I reiterated my long-standing thesis that, even if the law does not impose it, when an elected official has an oral proceeding, from the point of view of the conflict of interest -the exercise of office and the attention that your defense requires – what is ethically correct is resignation. Obviously it is not a legal obligation, but it is a very followed pattern of conduct, since it also pacifies political life, an institutional aspect to be taken into account. It may be unfair from a personal point of view, but politics is not only about the rights of its agents, but also about obligations, both ethical and legal, on the fulfillment of which the exemplarity that the system demands is based.

It is obvious that Laura Borràs has not resigned. She certainly is within her rights and does not break any rules. However, since politics is institutional, it transcends individual subjects. For this reason, the Parliament of Catalonia, in the midst of the hangover from the era of corruption of the leaders of the Democratic Convergence, unanimously agreed, before the procés reaches its maximum exponential, that is, without imposition outside Catalonia in any way, to reform the Parliamentary Regulations -which have the force of law like all parliamentary regulations despite their name-, introducing article 25.4. In this sense, it imposes on the Bureau of the Chamber the obligation to immediately suspend a deputy when it becomes aware that an oral trial has been opened against one of its deputies for crimes related to corruption. If there are doubts regarding the connection, they will demand an opinion from the Commission of the Statute of the Deputy. In short, in this state of affairs, requesting that a norm not be applied because it harms the interested party does not seem to be something very consistent with the citizen’s right to good government.

Let’s keep going. Corruption is not a criminal category, but a political-criminal conceptualization, which, over time, we have been refining in theory and practice. I accept as good the definition of it made by the European Commission in its Report on the fight against corruption in the EU (2014). It is possible to speak of corruption when there is “abuse of power to obtain private profits”. Two obvious consequences: the private profits can be owned or not by the corrupt and do not necessarily have to be of economic content. Therefore, whether there is money involved or not, it is possible to speak of corruption, here, only of alleged corruption, since there is still no conviction issued in the case.

Most of the members of the Bureau of the Catalan Chamber -all except those of the formation of the then President- still had no doubts about the corrupt nature of the alleged crimes: fragmentation for more than 4 years of service contracts, favor of an acquaintance, breaking the rules of competition that govern public procurement, altering the competitions with candidates who had not made any offer and obtaining a turnover of more than 330,000 euros in 18 operations. Cronyism is, of course, one of the clearest and oldest manifestations of corruption. In other words, it constitutes an abusive manifestation of power to obtain private profits. This alleged set-up has led to the opening of an oral trial against two more interveners, which denotes a certain degree of organization and perpetuation over time. Thus, the majority of the Board did not harbor any doubt regarding the corrupt nature of the alleged crimes.

However, the presumption of innocence of the now suspended deputy is not affected at all. To begin with, the presumption of innocence is a fundamental right, but one that is very fundamental within the criminal process, especially in the oral trial to be able to impose, if it is the case, a sentence with all the guarantees, that is, based, for what that is of interest here, in legitimate evidence of charge beyond reasonable doubt. Neither Parliament nor public opinion, with their decisions or expressions, affect the right to the presumption of innocence. The parliamentary suspension is not a conviction or circumstantial evidence, nor the value judgments expressed in this regard by other politicians, opinion-makers or citizens in general have any value as proof of the prosecution. Or, put another way: Laura Borràs is as innocent as any reader of this article, not criminally convicted, before and after her parliamentary suspension. In addition, on her, procedurally, there is no precautionary measure.

Now, this suspension – let us remember, agreed by a rule unanimously approved by the Catalan Chamber – entails several procedural and political consequences. The first of them is to determine the status of the suspended deputy. Does he lose all his rights except to be declared in suspension? The first of these consequences that is obvious, apart from the remuneration and other honorary distinctions, requires determining whether or not Borràs has lost his appraisal, that is, if he is to be judged by an ordinary court -here a section of the Audiencia of Barcelona- or if it should continue to be appraised and, therefore, would be judged by the Superior Court of Justice of Catalonia. This will be another workhorse. Without taking into account the waiting times in one or another way to air the trial.

As if the situation were not already complicated, a new element appears. Can the suspended deputy be replaced by the next person on your list? Otherwise, we would have a suspended deputy, without rights, but who would block the list on which he has been elected and would numerically alter the composition of Parliament and, therefore, the possible majorities and minorities in it. The subject is not trivial. Would the new deputy, if he entered his seat, be so provisionally until the seat is recovered by the suspended party or until the dissolution of the Chamber?

The uncertainties generated by Borràs’ performance do not remain here. Indeed, he is not only left in that unreal situation of vacancy-in-suspense of a seat, but even worse is the presidency of Parliament and of the Chamber’s Bureau. That’s right, provisionally, the presidency is held in full capacity, but provisionally, the first vice president of Parliament. JuntsxCat has stated that it does not intend to fill that vacancy, starting with that of deputy. In addition to the irregularity that involves altering the real number of deputies, this situation will result in the Table. The current pro-independence majority disappears. Only the quality vote of the current president can break the ties that occur, a tie situation that modifies the parliamentary arithmetic coming out of the polls.

Ultimately, this is the deepest political problem. There is an alteration of the composition of Parliament, moving away from what was decided at the polls by the sovereign citizens. It is not about saving this or that vote; or that this or that proposal can be rejected. The main question is that due to the will of a deputy, due to acts attributable only to her, an electoral result is put at stake and, therefore, the status quo that derives from it. In the public service, unlike what happens in the private sphere, democratic uses impose particular sacrifices so that the common good continues to flow. It is much more than a legal decision: it is a decision of political decency, at least, from the perspective of the citizen. Seriousness that is magnified when it comes to compliance with own and not imposed rules, as on previous occasions in a more than debatable way has happened. Here is a good topic for reflection and action accordingly.

No minor issues continue to appear that have not been resolved before, so I can see, in our institutions, issues that could be resolved at a stroke of the pen if the former President resigned from her seat. Her resignation, it is obvious to say, does not affect her procedural status at all, nor does it in any way imply any acknowledgment, not only of guilt, but even of a minimal responsibility in the facts.

The political dimension of the opening of oral proceedings for crimes that the Parliamentary Committee has considered linked to corruption goes far beyond the judicial sphere. Both because of the rank of the accused person and because of the relevance of his position, it would be very convenient for future and imminent decisions to take into account not only personal perspectives -of course to be considered-, but also institutional and organizational perspectives.

It is not necessary to start from the a priori that supposes the frequently brandished statement that in moments of crisis it is not appropriate to leave the position or the essential Numantine support to the colleague in difficulties. Neither the first is true nor the second is so Numantine. In particular, support of this kind, beyond high-sounding statements and not orphans of insults to third parties, with entourages of comrades to the door of the courts -sad photos-, as if it were going to reach the final consequences, this it is, until the political immolation of the followers, it has lead in its wings. Here, those who say they support it until the end have already expressed themselves: the procedural situation of Borràs is not going to endanger the coalition government in Catalonia, at least for now and due to these circumstances.