The reasons against banning Bildu

The narrow majorities one way and the other in the votes, first in the Supreme Court on Sortu, and now in the Constitutional Court on Bildu, reveal the prevailing doubts on the issue of parties or coalitions whose aim is to represent the abertzale (radical Basque separatist) left. Batasuna was outlawed some years ago for its dependence on ETA and its successors have followed the same path.

Bildu, however, is made up of legal parties and independent candidates, some of whom are said to be linked to Batasuna. To annul their electoral slates (that is, prevent them from running candidates in the upcoming municipal and regional elections in the Basque Country and Navarre) is not clearly at variance with the Constitution; nor does their authorization mean that the terrorists will again have representatives sitting on local councils.

Political considerations were inevitably involved. Allowing the candidacies strengthens the position of the abertzale sectors that have most distanced themselves from terrorism. This is surely necessary for the next step: the demand, coming from its own sympathizers, that ETA abandon violence unconditionally. Yet this green light to participate would also ease the pressure that has pushed the abertzales to a near break with ETA.

The Supreme Court decides whether the outlawing of a party is consonant with the law; the Constitutional Court determines whether, in so doing, fundamental rights have been violated. In the case of Bildu, two already legal Basque parties, EA and Alternatiba, were involved. And, by a narrow majority, the Constitutional Court considers it unlikely that the inclusion of abertzale candidates has caused these parties to change their non-violent line.

The Constitutional Court is the final court of appeal concerning the honesty of elections, particularly the equality of conditions between the contenders. This was the principle behind the outlawing of Batasuna, since a threat hung over the heads of candidates of other parties. But only doubtfully can this principle be extended to legal parties, unless it can be shown that they have submitted to the strategy designed by ETA.

The Court already ruled that the principle could not be extended to the legal party Internationalist Initiative, for which in 2009 the abertzales asked their sympathizers to vote. The same criterion has now been applied to EA and Alternatiba. And while the Constitutional Court, like the Supreme Court, admits that ETA and Batasuna may have shared the invention of the coalition idea, it rejects the conclusion that EA and Alternatiba have thereby become submissive tools of ETA.

These are arguments applicable only to a coalition of legal parties, so it is not certain that the Constitutional Court will rule likewise on the appeal of Sortu, a grouping which more clearly emanates from the outlawed Batasuna. The ruling on this appeal will have to weigh whether Sortu's essential aim is to act, like Batasuna, as an instrument of the strategy of ETA. This extreme is rather less obvious in the case of Bildu.