Antoni Bayona Rocamora 25/01/2020
Lawyer of Catalan Parliament
Image: Empty hemicycle Parliament of Catalonia
Liberal democracies are the only political systems that guarantee that public power is built on the popular will and acts in accordance with a legal framework that, for this very circumstance, also has a democratic origin. When we citizens elect parliaments, we also delegate to elected representatives the ability to establish on our behalf the norms by which we want to govern. Defining a State as democratic and based on law is not rhetorical, since it highlights that democracy and law go hand in hand and cannot be separated.
Respect for the laws is a requirement of the same democratic principle and it is very important that there are no exceptions on this point, especially when it comes to the performance of public power. The historical evolution of liberal democracies shows us that over the years there has been an incessant struggle against the immunities of power, in the sense of reducing and eliminating situations that do not guarantee their full submission to the law, especially of the Government and the Public administration.
Obviously, for this to be fulfilled, there must be a judicial power that controls the actions of the executive power. The rule of law does not only imply submission to the law of citizens and public powers, but also the guarantee that this principle is effectively fulfilled. And this guarantee can only be given by judges and courts that act independently and make their decisions impartially and under strictly legal criteria.
For a few years now, we have had some confusion in Catalonia about what we have just exposed. They started with a bad approach to the process when our political authorities decided to take it unilaterally, ignoring the constitutional framework. To justify this, the fallacy of separating democracy and legality was resorted to, incorrectly and dangerously understanding that a parliamentary majority obtained by the parties favorable to independence in the elections to the Catalan Parliament could prevail over the current legality. A massive error because not only did it forget, as we have said before, that this legality is also democratic, but the Catalans have also intervened in its elaboration with their participation, without exception, in all electoral processes. It is absurd to appeal to the democratic principle to justify the breach of a legality that is also democratic and in which we are all participants.
A political project that defends independence is perfectly legitimate, but it must be promoted in a much more sophisticated and solid way than decoupling democracy from legality and forgetting, furthermore, that all democratic expressions, including those of the Catalan Parliament, have only the value derived from the rules of the game established by the Constitution and the Statute. This is the case in all advanced liberal democracies.
Anyone is free to emotionally disconnect from the framework of coexistence established by a Constitution. When many people do it and this is due to a feeling of national emancipation, a crisis of constitutional consent occurs that should concern us all and that should not be relegated to dead ends due to a sense of collective responsibility. Although it is evident that a minimum sense of reality and the necessary respect for the basic values of the system does not justify breaking the deck and jumping into the void as has been done in Catalonia.
Skipping the law has its risks because all democratic and legal states are concerned with ensuring that this does not happen and that, if it does, responsibilities are demanded. The judiciary is responsible for this. The judges act in this case exercising a power of the State, which should not be confused, however, with a power at the service of the government of the day or of a partisan interest. The power of judges must adhere to what the law says and apply it accordingly. That is why it is necessary to guarantee judicial independence.
Unfortunately, the trial of the procés has not contributed, in my opinion, to many Catalans giving credit to the existence of a true separation of powers in Spain. The conviction of the procés leaders for sedition has many weaknesses, as do other Supreme Court decisions related to the trial. This has added to the independence story the argument that not only is the development of a popular movement impeded, but that it is repressed by a State that acts in solidarity through the coordinated action of its powers and does so with authoritarian forms.
Whether we like to admit it or not, due to the errors of one and the other, the belief that Spain is neither a true democracy nor a rule of law has settled in a large part of Catalan society. The peculiar and erroneous interpretation of the democratic principle by the Catalan authorities first, and the judicial response to the process later, have formed a devastating cocktail. A cocktail that is becoming more toxic with each new decision of the powers of the State, especially the judiciary, when it affects Catalan politics and is inevitably perceived as a systematic attack on its institutions. The disqualification of President Torra a few months ago is a good example of this and now it is the decision of the TSJC to keep the election date of February 14 against the will of the Catalan Government to postpone them for health reasons.
At this time, any decision of the Courts that goes against the interests of the Government of the Generalitat is not seen as the result of the normal functioning of the institutions. The judicial power as a whole is part for the ruling parties of an alleged conspiracy of all the powers of the State against Catalonia. It is not an exaggeration to say so if we stick to public statements by the main Catalan authorities that describe the TSJC’s decision as a “State operation”.
However, this perception does not seem right to transfer to a Court that is doing its work in especially difficult conditions due to the existence of a legal loophole. You may disagree with the decision to suspend the electoral postponement decree, but I have taken the trouble to read the order of precautionary measures and it seems to me to be well founded and weighted due to the interests at stake. It also seems prudent to me, since it leaves open ways depending on the evolution of the health situation.
In recent years, Catalonia has been plunging into a dangerous spiral due to the self-serving misrepresentation of the values on which our political system is based. The imaginary is being created that Spain is not a democracy and that the citizens of Catalonia are victims of an authoritarian state. There is not the slightest sign of self-criticism and, instead, the interest in holding the State responsible for everything that happens to us, even for our own mistakes.
But it seems clear to me that this responds to an interested deformation of reality, despite the fact that the procés has highlighted, as I think it is, that our democracy shows important deficits. These deficits do not make it disappear, of course, but they contribute to many people in Catalonia believing that this is the case.
We cannot continue on this path due to the risks that it entails. It is no longer just about an emotional disconnection, but about the delegitimization of a common value system that can open the door to illiberal or populist approaches that call into question the basic rules of the game of a democratic state and of law. As things stand, we may have a serious problem if, as it seems, some are already thinking of not accepting the result of 14F if it does not favor their partisan interests. We have already seen a few weeks ago on the other side of the Atlantic where they can carry attitudes of this type.