06/07/2020 Francesc de Carreras: Spanish jurist and columnist, professor of Constitutional Law at the Autonomous University of Barcelona.
The Statute of Autonomy of Catalonia of 2006 (Catalan: Estatut d’Autonomia de Catalunya) provides Catalonia’s basic institutional regulations under the Spanish Constitution of 1978. It defines the rights and obligations of the citizens of Catalonia, the political institutions of the Catalan community, their competences and relations with the rest of Spain, and the financing of the Government of Catalonia.
Demonstration Barcelona against the ruling of the Catalonian Statute. TEJEDERAS
These days it has been 10 years since the approval and publication of the ruling of the Constitutional Court on the Statute of Catalonia. Those who did not read it continue to say the same falsehoods as always: ignorance is daring, bad faith is infinite.
The current message of pro-independentists -and a good part of Catalan socialism, co-responsible for the Statute- remains the peregrine theory that the sentence broke a “constitutional pact”, it is assumed that between Catalonia and Spain. However, this pact is non-existent, it never occurred: the Constitution was approved by the Cortes, that is, the Congress and the Senate and, ultimately, ratified by a vast majority of the Spanish people.
This is explicitly stated in the heading of our Constitution and is repeated in the final paragraph of the brief preamble: “The Cortes approve and the Spanish people ratify the following Constitution.” There is no pact between representatives of two different entities -Catalonia and Spain-, but an agreement between Spanish citizens. That is, it is a Constitution and not a treaty: if it were a treaty we would be before a confederation, that is, a pact between previously independent States.
There is a long tradition in constitutionalism that has this same political and legal basis. For example, the American Constitution of 1787, the first Constitution in history, still in force, begins with the famous “We are the people of the United States” (that is, the constituent power) resides in the people, in the States of the former English colonies. From this it follows that all its regulations, including the constitutions of each of the federal States, were hierarchically subject to the Constitution.
This principle was definitively declared in the famous Marbury v. Madison of the Supreme Court pronounced in 1804. After the bloody civil war of the North against the South (federals against confederates), the Supreme Court applied this doctrine to the federal unit in the sentence Texas v. White (1869) by a very clear principle: the United States is “an indestructible union of indestructible States”, the same terms that President Obama recently invoked to reject a request for secession by a State.
Well, in this regard, our Constitution is very similar to the old American Constitution: it is not a treaty and the Constitutional Court acts as the ultimate guarantor of its compliance. This is what those who rejected the Statute’s sentence ignored to the point of going so far as to declare it to be illegitimate as undemocratic, since a jurisdictional power such as the TC could not contradict what the people of Catalonia had approved in a referendum. Before the sentence there were strong constraints on the TC. The best known was the joint editorial of 12 Catalan newspapers in which the magistrates were asked to declare the full constitutionality of the Statute, since it was a political matter. Little respect for the rule of law – in addition to showing the lack of pluralism in the Catalan press – this editorial stated: they were actually asking the judges to prevaricate. In a Parliament resolution the Court was asked to inhibit itself because it was incompetent: the same story.
Finally, a few hours after the decision of the ruling was known, but not the content, that is, its arguments, President Montilla, in a solemn televised address, urged Catalan society – to pick up the Òmnium Cultural glove – to call a demonstration that took place on July 10, the first of the protests called massive: one and a half million attendees according to the organizers, 425,000 according to the COUNTRY, 64,000 according to the specialized company Lynce. Catalan political populism began.
Here it all began, but it was not the cause of everything. The causes were also in the national construction policy that began in 1980, in the slogan “Spain robs us” of a few years earlier and in the social unrest caused by the 2008 crisis. On the part of the pro-independence movement that explicitly advocated ERC and, without saying it yet, CiU, they took the opportunity. The PSC was the necessary partner.
No one had read the court ruling: it was published on July 9, a day before the demonstration, when everything was ready to do it. Invoke that the fault of the situation we have reached was this sentence is not sustained. That it was used to manipulate Catalans is more than evident.