The excessive “judicialisation” of politics and “appeals to the Constitutional Court” have been dominating the best part of the news and discourse about the political situation in Catalonia, becoming a, comfortable and intentional, convenient truth.
By applying a selective focus and emphasis, these headlines rather than report, conclude that political action is all too absent. Confusing reality with conjecture, expressing despair and frustrated desires, they are entirely predictable but no justified.
Those who make these claims forget to mention that in democracy, a political system ultimately ruled by laws not by individuals, politics is not judicialised when everyone keeps to the rules.
Only authoritarian regimes are above the law and free the political system of the judiciary.In a democracy, nobody is above the law, because the primacy of law is our guarantee against the arbitrariness of the ruler.
The chief functions of the judicial system include bringing order between the powers of the State; regulating the distribution of authority and jurisdiction between its institutions; and resolving, according to the established procedure, any possible disputes that may arise within it. Might it not be then that instead of excessive judicialisation, we are actually faced with a stream of disruption and disobedience?
In a diverse society with a federal system like Spain, the virtues of territorial decentralisation can also lead to breaches of the rules by those, both local and general, with a part to play in the arrangement. For this very reason, in all decentralised nations a Constitutional or Supreme Court1 regulates the dynamic and changing relationship between regional and central governments.
In circumstances such as the present, with the Catalan government questioning the fundamental principle of the state, the legitimacy of the nation which forms it, the Constitutional and Supreme Courts have no option but to take sustained, appropriate action.
The other alternative, which the majority of Spanish parties do not wish to take, results in a course which all parts (see below) recognise as exceptional and which three countries, Germany, Italy and the United States, have also plainly rejected in the last nine years2,3,4.
At a general level, the changes required would include: reforming the constitution and calling a national referendum; accepting the permanent division of sovereignty and placing both, the state and its parts, under the constant threat of (mutual?) expulsion; and denying a stable future for social development and economic policies.
Moreover, in the case of Catalonia, two more conditions would have to be added: no accepted borders5and no protection for the resulting minorities, because the Spanish language and its correlate culture would be considered by the independentist forces “not the country’s own”6,7,8. All these considerations have considerable implications for coexistence and progress, which are ignored because it seems that often in matters of great importance, as occurs with romantic love, it would appear that it is sufficient simply to wish for them.
At this point in time, highlighting the excessive role of the judiciary only suits the interests of Catalan nationalism, determined to disavow and not abide by the channels provided for reform in the constitution. In this regard, it is worth pointing out two significant precedents.
The Parliament of Catalonia’s first resolution claiming the right to self-determination of the Catalan people in 1989 explicitly stated that any changes should be made “through the actions envisaged in the constitutional order”. The resolution was adopted with the favourable votes of CiU (Convergence and Union), ERC (Republican Left of Catalonia), ICVi (Initiative for a Green Catalonia/Independents) and Alfonso Suárez’s CDS (Democratic and Social Centre), and the opposition of PSC (Socialist Party of Catalonia) and the (timely) absence of PP (Popular Party).
More recently, in 2014, the CiU/ERC government acknowledged in its White Paper on the National Transition of Catalonia (considered the core document of the independence movement by judge Llarena in his indictment6) that acceptance of such constitutional rules would hinder the accomplishment of its objectives. This pro-independence statement of principles stipulated that “neither EU nor international law embraces any provision which caters for a procedure of which the Generalitat (Catalan government) may avail itself to convene a consultation of the sort the majority of the people in Catalonia are demanding”9,10.
Let us leave aside the contradictions to which we have grown accustomed from the nationalists, forever shifting and reshaping the goalposts of their arguments. The truth is no-one can blame Rajoy, Sánchez or whoever may follow them for the situation. The democratic system does not allow you to ignore the constitution. Not just all the constitutionalists, but even all the pro-independence parties recognise this in their main parliamentary and governmental resolutions.
This is the problem, however legitimate any aspiration may be. For the judiciary and parliament to accept secessionist ambitions, these must fall in line with democratic legality. Otherwise, the intervention of the judiciary is ineluctable.
Each in its own way, the fascist, socialist and anarchist revolutionary movements of the second half of the 20thcentury came up against such a response. Democracy and respect for the law are inseparable. That is why, of the aforementioned movements, only democratic socialism has survived.
Nationalism in Spain is currently going through its revolutionary stage. It does not accept legality and seeks to impose a new political order. Because the nationalists are not the only ones who exist and because we are a democracy, it would be desirable for them to accept the legal norms.
But their revolution has not finished yet. The proximity of the trial of their leaders can only accentuate their interest in exempting politics from justice.
1, Watts, R.L., 2000. Comparing federal systems (No. 342.24). Queen’s University (Kingston, Ont.). Queen’s University (Kingston, Ont.) 2nd edition, pp.99-108. (link)
- State of Alaska, Office of the Lieutenant Governor, Appelle. Supreme Court No. S-13024. Decided: January 15, 2010. Scott Kohlhaas, Appellant, v. State of Alaska.
“Secession is clearly unconstitutional and therefore an improper subject for the ballot initiative”… “If the people of Alaska wish to effect lawful constitutional change, they must do so in the modes outlined by the Alaska Constitution itself”
- Corte Costituzionale. Sentenza 118/2015. Decisione del 29/04/2015. Italian Constitutional Court, Decision.
7.2 …. pluralism and autonomy do not permit the regions to classify themselves as sovereign bodies… Such a referendum initiative, …, at odds with the unity of the Republic, could never involve the legitimate exercise of power by the regional institutions
- Bundesverfassungsgericht 2 BvR 349/16, 16. Dezember 2016. German Constitutional Court, Decision.
In the Federal Republic of Germany, as a national state based on the constitutional power of the German people, the states are not “masters of the Basic Law”. For secessionist aspirations of individual states, there is no room under the Basic Law. They violate the constitutional order.
- Resolution 306/11 2016 of the Catalan Parliament, point 1.4.“The Catalan Parliament expresses its support for those movements which claim the right to secede in any Catalan speaking territories”(original in Catalan, no Spanish translation provided) (link)
- Esquerra Republicana. Programa Electoral Eleccions 2012 al Parlament de Catalunya (2012 Catalan Parliamentary Election Manifesto). “The state is the tool necessary in order to establish a stable language framework in line with the reality of the country, in which Catalan will be the native national language and the main language used at all levels of the public sector”. (link)
- Junts Per Catalunya. Programa Electoral 2017 (2017 Election Manifesto). “We are committed to the pre-eminence of Catalan as the country’s own language”. (link)
- Candidatura d’Unitat Popular-Crida Constituent. Programa Politic Eleccions del 21 de Desembre de 2017 (Manifesto for the Elections of 21 December 2017).“The Catalan language as the language of the Republic”, point 170, p.42. (link)
- Spanish Supreme Court. Criminal Chamber Order 2097/2017 of 21/03/2018 (link)
- Consejo Asesor para la Transicion Nacional. Libro Blanco transición nacional Cataluña (Advisory Council for National Transition. White Paper on the national transition of Catalonia), 2014, page 26, paragraph 1.2. section 3).(link)
- de Miguel Bárcena, J., 2016. Manual para construir un estado. Los informes del Consejo Asesor para la Transición Nacional de Cataluña (Manual to construct a state. The reports of the Advisory Council for the National Transition of Catalonia). Teoría y realidad constitucional, (37), pp.499-528. (link)