Judge persecuted for writing draft of Catalan Constitution defends his freedom of expression in his free time

Barcelona (ACN).- The Disciplinary Commission of Spain’s Judicial Power Council (CGPJ) will have to decide whether it suspends Santiago Vidal, judge of Barcelona’s High Court, for having worked in his free time on the drafting of a proposal for a future Catalan constitution in the event of independence, together with other law experts. The decision is expected next Monday. Last Thursday, the CGPJ judge in charge of investigating other judges, Antonio Jesús Fonseca-Herrero, recommended Vidal’s temporary suspension for “infidelity to the Constitution” of Spain and for not having requested a compatibility validation. On Friday, the Catalan judge defended his right to freedom of expression and argued that this activity did not affect his work as he was doing it during his free time. The CGPJ decided to investigate Vidal since judges have to be impartial regarding the case they are analysing. However, judges are not legally banned from expressing political opinions and the CGPJ has not investigated other judges who have participated in activities of the People’s Party political think tank, for instance. Furthermore, the current President of the Constitutional Court (which is a body not strictly belonging to the judicial power but which is Spain’s highest court regarding fundamental rights), Francisco Pérez de los Cobos was a member of the governing People’s Party, long after he had already been appointed member of this highest Court. In addition, the disciplinary action against Vidal comes the same week that the first judge that investigated Bankia’s management, Elpidio José Silva, was suspended for 17 years, de facto being kicked out from the judge career.

Santiago Vidal was also accused in May by the extreme-right organisation Manos Limpias (which has nothing to do with its Italian homonym) for “promoting sedition”. Vidal was one of the 33 Catalan judges who last February signed a manifesto in favour of Catalonia’s right to self-determination, supporting the legality of a vote on such an issue. According to these law experts, “Catalonia is a nation”, “without discussion”, and therefore has “full sovereignty to decide its own future”. The judges emphasized that the Spanish Constitution already recognises “Catalonia’s national reality”, in its Article 2. They add that if “this recognition was not more explicit at that time” it is because of the transition model from dictatorship to democracy and “the danger of involution or authoritarian threat”, confirmed in 1981 “with the coup d’état”.

Article 2 reads that Spain is formed of “nationalities and regions”, although later was added “the indissoluble unity of the Spanish nation”. Such a formula was a compromise with the military and the old officers of Franco’s regime in order to recognise Catalonia’s nationhood on the one hand but not to derail the democratisation process on the other. Catalans massively backed the Constitution with the implicit promise that once democracy were consolidated in Spain, Catalonia’s nationhood would be fully recognised. However, the contrary has happened and now the Spanish establishment is only considering “the indissoluble unity of the Spanish nation” – an exact expression dictated by the military as Constitution’s negotiators explained, but they forget about Spain’s pluri-national nature.

Vidal defends his “fundamental right to freedom of expression”

On Friday, through a press release, Santiago Vidal stated that participating in the collective process of writing a proposal of a Constitution for an independent Catalonia during his personal free time “is not related” to his work as judge. This proposal is being prepared by 10 other judges as well as by Members of the Catalan Parliament and representatives from the civil society. Vidal has been carrying out such an activity in his free time and has openly talked about it in the last few months, although he has not disclosed the details of the proposal. The Catalan judge is fully convinced he has not performed any irregular activity as judge and he hopes the CGPJ’s disciplinary Commission will not act against him in the end.

In May he already went to Madrid to testify in front of the judge Antonio Jesús Fonseca-Herrero, who has promoted the disciplinary action against him. Back then, Vidal said that he was not testifying for “what he had done but because of on which issue”. Furthermore, he insisted he was not participating in such a draft as a professional assignment and he refused to identify the other judges involved.

In fact, it is now Fonseca-Herrera who has recommended Vidal’s suspension. However, the Catalan judge is insisting that he will “always” keep exercising his right to freedom of expression in relation to issues of public and social interest. Furthermore, Vidal thanked all the people who have given him their support, “coming from all the fields, society, justice colleagues, association or friends”. He said to be “a fortunate person for having the chance to see how far solidarity goes when democratic ideas are defended, whether people share those ideas or, legitimately, they are against them”.

Regarding the Constitution’s draft, Vidal said that the CGPJ is “already late” since it was “finished a week ago”. He said that it will be presented to the Catalan society in early 2015.