Catalonia is not "a sovereign political and legal subject" states the Constitutional Court

Barcelona (ACN).- Spain's Constitutional Court has reached a unanimous decision against the Catalan Parliament's 'Declaration of Sovereignty', approved in January 2013 and appealed by the Spanish Government. In May 2013 the Constitutional Court had already put the Declaration on hold, temporarily stopping its implementation while it was reaching a definitive decision, which has happened this Tuesday evening. Finally the Court has declared the first part of the text, which stated that "the people of Catalonia is, for reasons of democratic legitimacy, a sovereign political and legal subject", "unconstitutional and void". However, it adds that the people of Catalonia have "the right to decide" but not the "right to self-determination". It also emphasises that the Constitution can be reformed. The decision has been reached a few hours after the Catalan Parliament had approved a motion to demand the disqualification of 3 of the 12 members of the Constitutional Court because they are not impartial on Catalonia's sovereignty. These 3 members had close links with the PP and had made public statements against Catalonia's nationhood. However, the Court did not wait for the formal disqualification petition to arrive, and issued a definitive ruling on the Declaration of Sovereignty. Political parties have reacted as expected: those supporting Catalonia's self-determination are outraged while those opposed to holding such a vote praise the Court's decision and demand that the Catalan President abandon the self-determination vote. The Spokesperson for the Catalan Government, Francesc Homs, highlighted "the contradiction" of including on the one hand Catalans' "right to decide" but on the other hand to state that Catalonia "is not a political subject". In addition, the Spanish Government stated that the Court has confirmed its stance on the issue. However, it "does not feel concerned" by the second part of the Court's judgement, which recognises "the right to decide" and possible modification of the Constitution. The 'Declaration of sovereignty and the right to self-determination by the people of Catalonia' was approved with 85 "yes" votes against 41 "no" votes by the 135-seat Catalan Parliament, with the support of MPs from 4 political groups.

This Tuesday, the Constitutional Court has shaped a new milestone in Catalonia's self-determination process. The Madrid-based body has declared the 'Declaration of sovereignty and the right to self-determination by the people of Catalonia' to be unconstitutional. The Court has not gone for an open interpretation of the Constitution, which might ban Catalonia's independence but does not include any specific ban on a self-determination consultation vote, as legal experts have pointed out on numerous occasions. For instance one of the Constitution's 'fathers', Miquel Roca, stated before the Catalan Parliament that an open interpretation of the text would allow holding a self-determination consultation vote.

Denying Catalonia's nation status

However, in its statement, the Court highlights "the indissoluble unity of Spain" and does not take into account other arguments, such as Catalonia's nationhood, recognised in the Constitution under the formula "Spain is formed of nationalities and regions". This formula was a compromise reached between democratic forces and Franco's dictatorial regime in order to recognise Catalonia's and the Basque Country's nation status without putting the entire democratisation process in jeopardy. 36 years later, a highly politicised Court dominated by the People's Party (PP) – which runs the Spanish Government and holds an absolute majority in Parliament – sticks to the "indissoluble unity of Spain" but not to what "nationalities" meant.

The Court does not take into consideration Catalonia's status as a nation, nor international law, nor Wilson's doctrine on the right to self-determination of nations. Instead, it treats Catalonia as a mere region, without taking into account its history of self-government and the democratic will of the Catalan people. It insists that the Constitution guarantees "the indissoluble unity of the Spanish nation" in its Article 2 and that "national sovereignty belongs to the Spanish people as whole". It carries on saying that "an Autonomous Community [...] cannot unilaterally call for a self-determination referendum to decide on its integration within Spain".

Recognising "the right to decide", but not on self-determination

However, at the same time, the Court recognises that "Catalan citizens' right to decide" fits into the Constitution if it does not mean self-determination. Such "a right to decide" would be on issues foreseen by the Constitution (such as holding referendums on specific policies or holding elections). However, the Court insists that the "right to self-determination" is "not recognised" in the Constitution. Therefore, such a right is "a political aspiration" which can only be achieved through a process totally in line with the Constitutional order, following the principles of "democratic legitimacy", "pluralism" and "legality".In fact, the Court points out that the Constitution can be reformed according to the legal procedures even for the case of "modifying the fundamental grounds of the Constitutional order".

A decision issued a few hours after the Catalan Parliament demanded the disqualification of 3 Court members

The decision arrives after months of internal debate and previous failed attempts to reach a consensus, since a group of progressive members did not want to rule on this Declaration as they were convinced it was merely a political text lacking any legal effect. However, the conservative majority wanted to annul the entire text, following the Spanish Government's indications. In fact, the Spanish Executive had stated that they were "convinced" the Court would find the Declaration unconstitutional.

In addition, the decision also arrived a few hours after the Catalan Parliament had approved a motion to demand the disqualification of 3 out of 12 Member because they are not impartial regarding this case. The Catalan Parliament's Bureau reached this decision on Tuesday morning and was to formally make the petition in the coming hours. However, the Constitutional Court issued its judgement before the formal petition was sent, although it had already been announced.

The 3 Members targeted were the Constitutional Court's President, Francisco Pérez de los Cobos, and two other Members, Pedro González-Trevijano and Enrique López. In fact, the Catalan Parliament had already asked for the disqualification of Pérez de los Cobos last year, but the Court refused the petition. The Catalan Parliament considers them to be biased since Pérez de los Cobos was a Member of the People's Party until 2011 and has been making public statements against Catalans or against Catalan institutions. Furthermore, last week, as all the media agreed, Pérez de los Cobos indirectly referred to the Catalan President at a public event and asked him for "loyalty" and "to respect the rules of the game". Besides, the two other Members – González-Trevijano and López – had collaborated with the PP's political foundation, called FAES, writing studies for them. Therefore, these facts totally affect their impartiality, and therefore the Court’s, as referees in such a conflict.

Parties supporting the self-determination vote are outraged

The Chairman of the Centre-Right Catalan Nationalist Coalition (CiU) group in the Catalan Parliament, Jordi Turull, stated that the resolutions of the Constitutional Court "lack all credibility" since a long while ago. The CiU – which runs the Catalan Government – said that there are Members of the Court who are "agitators of Catalono-phobia". Turull insisted that the Declaration had no legal effect, but was a political statement. In this vein, he regretted that the Court considered that “a group of friends, a mushroom-lovers club, a property-owners association” have “greater freedom of expression” than “the [Catalan] Parliament”.

The Left-Wing Catalan Independence Party (ERC) stressed that “the road map” towards a self-determination vote “will not be modified by a single millimetre" after the Constitutional Court's ruling. "The Parliament represents many more citizens than the opinion of 12 people who have been directly appointed by the political parties", stated the ERC MP Pere Aragonès referring to the 12 Members of the Court, who do not have to be professional judges and whose appointment is always a bargaining process between the PP and PSOE. "On the 9^th of November we will put out the ballot boxes and the ballots, and the people willing to do so will be able to vote", he stated.

The Catalan Green Socialist and post-Communist Coalition (ICV-EUiA) stated that "12 gentlemen and ladies of a Court in Madrid will not make us abandon our objective of being able to vote". Josep Vendrell, Secretary General of the ICV, regretted that the Court had ruled on a political declaration with no legal effect. He also made it clear that the Catalan Parliament's road map is "perfectly" in line with the current legal framework. "Citizens must rest assured that we are carrying out this process from a position of democratic and social legitimacy and with a clear will to use the existing legal mechanisms", he stressed.

The radical left-wing and independence party CUP "does not recognise" the Constitutional Court's decision because "the sovereignty exercise cannot be analysed" from a legal perspective. The CUP MP Isabel Vallet wondered whether the Court "had not understood the word 'sovereignty' and the democratic and majority will to exercise it".

The parties opposing the vote ask the Catalan Government to stop the self-determination process

The Catalan Socialist Party (PSC) – which is part of the Spanish Socialist party (PSOE) – asked the Catalan President "to put the counter at zero" regarding the self-determination consultation vote. The PSC's Spokesperson at the Catalan Parliament, Maurici Lucena, asked Mas to start again. Lucena recognised that a self-determination vote was "desirable" – which is totally oppose to what the PSOE thinks – but that the process had to start again, looking for the initial "agreement between governments [the Spanish and Catalan], whatever it takes and however long it lasts". "Any other shortcut will lead us towards a cliff", he concluded.

The People's Party (PP) – running the Spanish Government – asked the Catalan President to "listen to the Court's unanimity" and "abandon" the self-determination vote. The PP's Spokesperson, Enric Millo, asked for a "serene and deep reflection". He particularly addressed Mas and asked him "to put an end to the dead-end" of Catalonia's self-determination.

Finally, the anti-Catalan nationalism and populist party Ciutadans (C's) also asked the Catalan Government "to abandon" its self-determination claims. The Spokesperson of C's at the Catalan Parliament, Carina Mejías, said her party was "satisfied" by the Court's decision. They asked Mas "to govern for all the Catalans" or "resign" in order to leave the office to "someone with a defined project to leave the economic crisis behind".