Judges say that Catalonia’s self-determination fits within the Spanish Constitution

Barcelona (ACN).- 33 Catalan judges have signed a manifesto in favour of Catalonia’s right to self-determination. According to these law experts, “Catalonia is a nation”, “without discussion”, and therefore has “full sovereignty to decide on its own future”. The judges underline that the Spanish Constitution already recognises “Catalonia’s national reality”. 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”. According to these legal experts, the right to self-determination is not mentioned within the Spanish Constitution and, therefore, it is to be interpreted according to international legislation and from a “lively and dynamic perspective, not a sacrosanct one”. They conclude that the Catalan people’s right to decide on its relationship with the rest of Spain fits into the current constitutional framework and is in line with international law. Some of the signatories work in provincial High Courts and have been members of the body governing judicial power in Spain (CGPJ). It is the first time that Spanish State civil servants have made such a clear statement supporting Catalonia’s right to self-determination. Judicial power in Spain is totally centralised and has a deep centralist tradition. Judges working in Catalonia come from all over Spain and they are managed by a Madrid-based body.

In their manifesto, the judges recalled that in recent years, Catalans have already decided on their relations with Spain on three occasions, the last one in 2006 with the Statute of Autonomy. However, they point out that this agreement was totally altered in 2010 with the Constitutional Court’s ruling that re-interpreted the Statute of Autonomy in a restrictive way. According to them, this sentence has led to the current political situation.

The manifesto will be sent to the rest of the judges and the political parties and institutions

The manifesto, which is two-and-a-half-pages long, started being drafted in mid-January. It will be sent to the political parties, the Catalan Government, the Catalan Parliament and the rest of the 756 judges working in Catalonia. It is expected that around a hundred judges will sign the document. The 34 original signatories belong to different associations of judges or they do not belong to any of them. Some of them are very senior judges, occupying relevant positions in provincial High Courts and have even sat in the 20-member Council that governs the entire judicial power in Spain. These are some of the signatories: Montserrat Comas d’Argemir, Santiago Vidal, Josep Niubó, Joan Francesc Uría, Juli Solaz, Carmen Sánchez-Albornoz, Josep Maria Miquel Porres, Míriam de Rosa Palacio and Josep Maria Pijuan, among others.  It is the first time that senior Spanish State officials have signed a manifesto defending the legality of Catalonia’s right to self-determination.

“Catalonia is a nation”

According to the manifesto, the key issue of the debate is whether the reality of Catalonian nationhood and therefore its “full sovereignty to decide on its future” is accepted or rejected. Then they add that it is a fact “that does not admit any discussion: Catalonia is a nation” because of its history, culture, own language and a “repeated and persistent will to be recognised as a distinct society, fully compatible with its integrating character”.

Catalonia’s national reality is “at the basis of the 1978 Constitution” and in the Statutes of Autonomy of 1979 and 2006. “If such a recognition was not more explicit at the time”, it was because of “the model of transition from dictatorship to democracy” and the “danger of involution or authoritarian threat”, which was confirmed in 1981 “with the coup d'état” that took place on the 23^rd of February. Furthermore, the manifesto points out that the 2006 Statute of Autonomy was “grossly distorted” by the Constitutional Court “in essential aspects regarding national identity and self-government”.

Catalonia’s “undoubted nationhood status […] inevitably involves the recognition of its right to self-determination”.  The so-called ‘democratic principle’ frames both the international legal framework and that of the European Union. Therefore “the denial” of Catalonia’s right to self-determination “can only be understood and expressed by strictly following ideological and political criteria that deny the national reality of Catalonia”.

The restrictive interpretation of the Spanish Constitution has created the current situation

The ruling of the Constitutional Court in 2010 has created the current situation, according to the judges, who point to the massive demonstrations of 2010, 2012 and 2013. They also mention the opinion polls and published statements made by political parties, trade unions and social organisations, which show that “a large part of Catalan society wants to decide the nature of its connection with Spain, and to do so choosing among all the options, including independence”.

For the manifesto signatories, the right to self-determination can be exercised within the current Constitutional framework. They underlined that the 1978 text is based on the principles of freedom, justice, equality and political pluralism. “In any case, any Constitution should allow an ongoing discussion and evolution process and the subsequent acceptance of any legitimate project aiming to modify the constitutional order”, the judges say.

Then the text details some articles of the Constitution that protect political rights and freedoms, including the organisation of referendums. In addition, the judges state that “the Constitution’s precepts relating to fundamental rights and freedoms must be interpreted according to the Universal Declaration of Human Rights and the international treaties and agreements ratified by Spain”.

International legislation supports Catalonia’s right to self-determination

The manifesto cites Article 21 of the Universal Declaration of Human Rights which stipulates that “the will of the people shall be the basis of the authority of government”, as well as the right to self-determination contained in the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights.

The judges point out that according to criteria related to the recent case of Canada, the right to self-determination is “not only limited to the peoples ruled or oppressed by foreign powers, but it extends to those people that, despite being integrated into a democratic state, suffer a limitation of their right to self-government”.

Therefore, the judges conclude that “in the current Constitutional framework, interpreted in the light of international legislation and the fundamental principles and rights that inspire it, the legitimate exercise of the right to consult [the citizens] demanded by a majority of Catalan society is justified”.