Germán Fernández Farreres, chaired professor of administrative law. Head of the administrative law department at the Faculty of Law, Complutense University of Madrid.
The pro-independence action of both the Catalan government and the parliamentarian political forces supporting it, which have adopted in the last four years continuous legislatives and executive’s measures oriented to achieve the proclamation of the Catalan Republic, has led to—as it was expected to happen if there was not an immediate reaction— a denial of the Constitution and, thus, in disobedience towards the measures implemented to defend it. Catalan authorities, which have not stopped to design and articulate its pro-independence project through legal courses, using all the possible stratagems, when they have realized they could not succeed since they radically opposed all the provisions laid out in the existing Constitution —as they already knew it—have taken the next step of denying the legitimacy of the State to directly head towards rebellion.
This is the situation we face now. Moreover, it is a situation mainly characterized by the tacit strategy of measuring with each action the reactive energy of the State and, at the same time, the self-capacity to oppose it. All this in a scenario characterized by the state authorities’ effort of maintaining “caution” in the use of words and expressions (remember: “moderation and proportionality will always characterize the action taken for the defense of the Constitution and the rule of law”; or that one saying, “do not force me to do something I do not want to do”, among other similar ones), in a display of “democratic” attitude in order to avoid—even the purpose is naïve—any accusation of “authoritarianism”.
It not advisable to overlook the strategy followed during all this intolerable process which ultimate goal is Catalonia independence. For the moment, the so-called procès is not the result of an organized social movement against power, from which have derived the action of opposing the Constitution, instead it is the power established by itself—the Catalan authorities from the constitutional power they have received—which has carried out and put into practice, seeking and then encouraging a social support which has certainly grown. Technically the procès has materialized as a “coup d’état”—an excessive rough and wide term for an eminent political analyst, who prefers to talk about “constitutional crisis”; once again the linguistic exquisiteness—that, lacking the characteristic and traditional means of a coup, the military force, has grossly used the Law to carry it out.
Successive declarations from the Parlament (the Catalan Parliament) and the Generalitat (the Catalan government), followed by different laws, until it arrived at the last two fateful laws, one calling on a decisive referendum (Ley de Referéndum) and the so-called Transience Law (Ley de Transitoriedad), have produced an absurd judicialization of the issue, fueling the fire of legal debates that make people who heard them blush. Politicians have turned into in part jurists and, what is worse, some of these jurists have turned into politicians, manipulating the Law and trying to conceal, in a childish way, the reality itself of the undertaken action, a truly attack against the constitutional and democratic rule of law.
Nevertheless, what is truly striking and at the same time explains to a large extent the situation we have arrived to, is that the answer of the State power has been to enter the game. Issues that in strict legal terms did not admit the minimum discussion, that did not need more motives and arguments since they were very clear and limited and thus that could and should be resolved without any complexity, adopting consecutively and without delay the corresponding reactive measures. Issues and arguments messed up because of thinking too much on it, of keep persevering on them with the purpose of gain reasons and convince, when, in reality those who kept defending them knew since the first moment they lack all justification and legal principle.
The Constitution Court has made countless declarations, again and again, regarding the incompatibility of a supposed “right to decide” with the constitutional framework or rejecting the viability of a referendum on the State territorial integrity. Admonishments towards Catalan authorities, without having any effect, have also been countless. In short, we have incomprehensibly attended a legal debate in which, as it happens when the sobriety of the legal reasoning is lost, some vagueness and ambiguities have been used to both distort and nourish it. For instance, the unnecessary affirmation from the Spanish Constitutional Court judgement 42/2014, of 25 March, regarding the reference to the “right to decide” mentioned in the resolution of the Catalan Parliament of 23 January 2013, approving the “declaration of sovereignty and right to decide of the people of Catalonia”, could be interpreted as a “political aspiration”—even then it was specified may only be achieved through a process that conforms to constitutional legality and follows the principles of “democratic legitimacy”, “pluralism” and “legality”—so it could be consider in line with the Constitution principles. Likewise, the Spanish Constitutional Court judgement 31/2015, of 25 February, despite declaring partially unconstitutional the Act 10/2014, of 26 September, of the Catalan Parliament regarding non-referendum popular consultations and other forms of citizen participation act, in the legal basis 6 specified that “the Constitution does not specifically address and cannot specifically address all the issues which can arouse in the constitutional order, in particular the ones derived from the will of a part of the State of modifying its legal status” and “thus, public authorities, particularly territorial powers which define our autonomous state are the ones called upon to resolve through dialogue and cooperation the problems arose in this field”. Neither it seems that the reform of the Spanish Constitutional Court Basic Law has been appropriate. This reform seeks to confer the Constitutional Court with more guarantees for the compliance of its decisions, however, it has generated an unnecessary controversy, even within its own structure, regarding its exploitation and politicization. As if the autoritas of the Constitutional Court was not already enough damaged! Or what to say of the unbelievable comprehension—when not explicit support—some so-called jurists have shown towards the lack of legitimacy political reproach of the judgement declaring in part unconstitutional the Catalan statue of 2006, arguing that the democratic will, of the people who have endorsed it, was damaged, and ignored an imaginary pact between the State and Catalonia, which would explain and would justify the launch of the procès. Such legal absurdity has been accompanied by dilettante controversies regarding, for instance, if it was appropriate to act against the successive demonstrations and unequivocal claims from the secessionist authorities if they were not written and accompanied with the corresponding signatures, and some other now it is not necessary to remember.
In short, during months and even years an artificial legal controversy has been maintained—with a remarkable media impact of course—, typical of pettifoggers in the best of the cases, which has only created more confusion regarding legal security. It should have been solved in an immediate and solemnity way—since the substance of the matter had no room and the purpose was clear—proceeding, as it is natural, to the firmly adoption of mechanisms to enforce the compliance. Since it was not done, cutting from the roots all the pretensions, it has helped the procès to keep advancing, passing all the phases, until the situation we face nowadays. Now it is the time to wait until the Parlament and the Generalitat proclaim the independence of Catalonia, making it look like as if it was a legitimate decision from the Catalan population. In order to respond to this threat, the Government of Spain will need to do something else that just refer to the Constitutional Court, so it suspends the aforementioned declaration and formulates a new admonishment. Therefore, depending on the strength of the response, it is possible and even probable the procès continues, lengthening with that a social tension that only benefits the coup d’état.
We are attending a legal ogre that, if it was not for the gravity it possesses towards the rule of law, does not deserve any attention. However, the strategy, since it has not received an appropriate answer neither in form nor in time, has managed to spread the idea that the challenged to the Constitution, and in the last request, to the Spanish population, needs a political solution through dialogue and negotiation. There are many voices claiming for this, not only in the field of politics, but also, and surprisingly, among many jurists. They are claiming it is the time for politics and not for judges and courts, since, with the application of the Penal Code and the Law, with the Constitution at the top, will not solve the problem. They are claiming it is necessary to do more, that dialogue and deals are essential for giving a response and surpass a confrontation in which it is advisable that there are not winners and losers. And, as culmination, do not express yourself if you are against the issue because you will be accused of lack of democratic sensibility.
Well, maybe the ones defending that approach are right. However, the regards of a jurists who believes in his work and function and, thus, in the value and the raison d’être of Law, cannot agree with such opinions and political positions. Nowadays what is at stake is more than the territorial integrity of the State guaranteed by the Constitution—anyways, an integrity that will be maintained since the Spanish population as a whole wants it—; what is at stake, and in real danger, is the preservation of the Constitutional Rule of Law, which took a huge effort to be built.
It is truly unbelievable that at this point of the separatist procès, Catalan authorities—which cannot be forgotten they are also from the State—are the ones who continue putting it into practice. An anthological sarcasm, difficult to compare.
The fact of trying to take ballot boxes away without previously removing from their posts those who ordered to put them, or that the people in charge of taking them away remain under the control of those who ordered to put them, and that these last ones announce they will proclaim the new Catalan Republic or the new Catalan State when it is more advisable for them and that, in the meanwhile, the State continues to cultivate prudence and the moderation of warning the illegality, unconstitutionality and the necessity of going back to common sense to avoid major disgraces; maybe all the aforementioned is what politics wants. Of course, not what the Law demands.
To date, I have no given up on mi condition as a jurist. I have been explaining Law to my university students for a long time and I have always tried to instill to them the value and respect the Constitution and the Law deserve, as well as the accuracy that needs to preside its observance and compliance, without any type of prejudices and make it effective. Tomorrow, I will be aiming, with the hope of continue being assisted with the necessary convention to do so, because without convention on what is said and done, the farce is inevitable. In other case, it will be better to recognize reality and do not participate more time in the deception. I hope it does not need to be this way.
Translated by María Maseda Varela