CATALONIA -- "Enough already with saying the referendum is illegal" - VilaWeb

"Enough already with saying the referendum is illegal" - VilaWeb

"Enough already with saying the referendum is illegal"

Interview with Daniel Bartomeus, one of the judges who signed the manifesto en favor of the right to decide 

 

'The state's governmental institutions should make a political
statement in favor of the right to self-determination of the peoples who
want it, because it is a fundamental right, recognized by the
Constitution,' declared Daniel Bartomeus, one of the signers of the
manifesto of Catalan judges in favor of the right to decide. He makes it
clear that the Constitution not only is not an impediment to the
referendum, but establishes that the Spanish government should promote
it, as is the case with the British Government with respect to the
Scottish referendum. 'We judges make few public declarations because we
are prudent,' he says, but now it was time to publish this manifesto,
which has no similar precedent, to counter many of the messages that
negate the right to decide.

The manifesto makes it clear that the referendum on Catalonia's independence is perfectly legal…

Yes. Now the idea has spread that a poll on the right to decide, or
even a binding referendum, would go against the Constitution or be
illegal. That is said a lot lately. Well, we, as legal scholars, and
judges, we want to say we've had enough of people saying these things.
Enough already of saying that the referendum is illegal. It's not. It
doesn't go against the Constitution and it's perfectly possible and
legal. The manifesto clears that up from a legal point of view. The rest
of the discussion has to be made in political terms, because the
legality of the referendum can't be denied.

Then, when the Spanish government says it's illegal, it's interpreting the Constitution incorrectly?
The
Constitution can be interpreted in many ways, that's true. But these
interpretations can only go so far. The Constitution cannot be
interpreted against its own principles. And there are two basic
principles that the Constitution has. The first is Article 10: the
rights and liberties of the citizens must be interpreted in accordance
with the Universal Declaration of Human Rights and with other
international norms signed by the Spanish State. And indeed, the
Universal Declaration of Human Rights, among other things, anticipates
the right to self-determination of peoples. The second basic tenet is
Article 9. This article demands that the public institutions, in the
course of applying rights to people, and to the groups made up thereof,
do everything possible so that these are effective and efficient. That
is, you, public institution, it's not enough to recognize some rights
and establish them in laws, but you also have to act politically so that
these rights are actually effective. That's what the Constitution says.
Therefore, it's pretty obvious that the public institutions of the
State would have to undertake some political action in favor of the
self-determination of peoples who demand it, because it is a fundamental
right recognized in the Constitution itself.

The key is that Catalonia is understood to be a nation?
Yes,
you have to start with the premise that Catalonia is a people and is a
nation. But it turns out that, in addition, there is a demonstrated
will, which seems to be a majority opinion, of separating, becoming
independent. Or at the least to vote on it. Saying that the Constitution
doesn't allow such a thing is to build a brick wall to bash one's head
against.

According to you, it should be the Spanish government that makes the first step toward a referendum?
Judges
normally don't express themselves publicly in this way, through
manifestos, but in this case, the legal reason seemed so clear to us
that it was important that we spoke out. That is, yes. It's not true
that the Constitution prohibits the referendum, on the contrary:
according to the Constitution it should be the public institutions who
take the initiative of facilitating the right to self-determination, if
there is a group that is asking for it. And from here, and now I'm
speaking just for myself and outside the legal sphere, the political
powers should come to an agreement. That is, surely, if a ten year plan
was made for Catalonia's independence with a good agreement with Spain,
it would be good for Catalonia, good for Spain and good for everyone. I
repeat, however, that that's not my job.

Do you think that this manifesto can help change the position of the Spanish judiciary?
Yes.
Of course it can help. Judges are used to reflecting and changing their
minds. It's our job. Actually, our job, as judges, is to say No as we
wait for them to convince us that we should say Yes after having
listened to both sides. In the end, we're all colleagues and among
colleagues things are read more closely.

For now, about thirty judges have signed the manifesto. Maybe
it's stereotype, but judges are considered to be one of the most
pro-Spanish professions in Catalonia…
It's a stereotype.
It's true that judges have this image, more than pro-Spanish, of being
conservative. It's a traditionally conservative profession, but there
are many progressive jurists and there are many that understand the
reality that is Catalonia. It's difficult to evaluate the numbers, but
there is a lot of diversity. In addition, there is another important
factor, that judges are very cautious and therefore tend not to publish
manifestos. That also explains why we are the number we are, thirty.
Judges hand down rulings, not manifestos. But this time we found it
opportune. It's a document that we have been working on for a while. And
for now we've decided to publish it through the media. Soon, we'll
publish it on a platform so that other judges can sign on. And for the
moment, there is one magistrate from the Supreme Court, who is Jordi
Agustí. There are four of us from the Superior Court of Justice of
Catalonia (TSJC), there are several from the Barcelona Cort, and there
are also magistrates from outside Barcelona: from Tortosa, Sabadell,
Girona, Lleida, etc. And there's also Josep Maria Pijoan, who just
retired, but who also wanted to sign.

We were speaking about the Spanish judiciary. Are you
conscious of the fact that as judges, this could be seen as very
important from an international point of view?
Yes, of
course. But the point of the manifesto is not to have any particular
influence either on Spanish legal colleagues, or abroad, or on any
political institution. We just want to disrupt this idea that we were
just talking about that judges, by definition, go against certain
things. What we do is consider, from a legal point of view, the central
questions facing a society.

Is the case of Great Britain and Scotland an example of that?
The
English have given us another lesson with this. But with respect to
this issue, Spain and England have always been different. Since the War
with Cuba, in Morocco, what happened in Guinea… Spain has always done it
wrong. But England, on the other hand, has known how to manage these
things better, although it's had a conflict with Ireland, but they've
known how to handle it partly well. With respect to what they've done
with the colonies, there's no comparison. They have another tradition.
Spain has always been different.