Judges Manifesto for the Right to Decide


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Judges Manifesto for the Right to Decide

Source: Judges in Catalonia.

Date: 06.02.2014.

Published in: News & Politics
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Judges Manifesto for the Right to Decide

  1. 1. Judges' Manifesto for the Right to Decide The undersigned—judges and magistrates who practice in Catalonia—as legal scholars and public servants—believe that we should share our perspective with Catalan civil society with respect to the legitimacy and/or legality of the so-called right to decide, and its possible consequences. Right now there is a broad and intense debate going on, in Catalonia but also in the rest of the State, about the so-called right to decide. And from various positions or viewpoints, the idea has been spread that the recognition or exercise of this right to decide is completely outside our Constitution and even outside international jurisprudence, and therefore enjoys no legitimacy whatsoever. The key question in this debate, however, in our understanding, depends on accepting or not the national reality of Catalonia, and therefore its full sovereignty for deciding its future. One must start with—we believe—a fact that is undeniable: Catalonia is a nation. This reality is determined by having a history, a culture, a shared language, and—above all—a repeated and persistent will to be recognized as a differentiated national society, which is not contradicted by its fully open and integrating character, evidenced by recent history. This fact—the national reality of Catalonia—is evident in the foundation of the Constitution of 1978, and in the Statutes of Autonomy of 1979 and 2006. If recognition was not, at the time more explicit, that is due to readily known reasons, basically the model of transition to a democratic regime, and the danger of reverting to an authoritarian threat, confirmed in 1981. This undeniable national reality of Catalonia brings with it, without question, the recognition of its right to decide: the so-called 'democratic principle' is inherent in all international and EU jurisprudence and one of its most elemental consequences is the right of peoples and nations to decide their own future. Therefore, a denial of the right to decide can only be understood and sustained by a strictly ideological and political criteria of negating the national reality of Catalonia. Indeed, it can be understood that Catalonia has exercised this right on several occasions: when submitting the Constitution and successive Statutes of Autonomy in 1979 and 2006 to referendum. But its latest decision, the Statute of 2006, was—in essential aspects of national identity and self-governance—completely weakened by the ruling of the Constitutional Court on June 28, 2010. This rejection generated the current political situation: the public demonstrations in 2010, 2012, and 2013, the public polls and repeated pronouncements by social, syndicate, and political organizations make it clear that a large part of the Catalan people—given the rejection of its last decision (the Statute of Autonomy)—wants to take another look at its relationship with the Spanish state, and to do so by contemplating all options, including independence. In contrast with what some particular sectors affirm, and as legal scholars, we believe that this right to decide can be exercised in the current constitutional framework, from a dynamic, living, and not sacramental, perspective of the Constitution, as is necessary in a social and democratic state that—as is defined in its first article—promotes values that are superior to its jurisprudence like liberty, justice, equality and political pluralism. And in any case, any Constitution, as an essential tool for democratic coexistence, must allow a continuous process of discussion and evolution, and the consequent acceptance of any legitimate project that seeks to modify the Constitution. As is proclaimed in Article 9.2 of the Constitution, it is the public institutions which must promote the conditions under which these rights of freedom and equality of the individual and of collectives of which it is comprised be real and effective, and also remove the obstacles that prevent the same and to facilitate the participation of all the citizens in the
  2. 2. political, cultural, and social fabric. This fundamental right of all citizens to participate in public affairs is consecrated in article 23 and more concretely, in article 92, the possibility of a poll by way of a referendum is anticipated with respect to particularly important political decisions. Finally, it's important to remember that—according to article 10.2—the precepts of the Constitution relative to fundamental rights and freedoms must be interpreted according to the Universal Declaration of Human Rights and the treaties and international accords ratified by the Spanish State that are based on the 'democratic principle' in the consideration that the will of the people is the basis for the authority of government (article 21 of the Universal Declaration) and in the right of the peoples to their free determination (International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights). The right to self-determination, according to the most recent criteria (and in relation to the case of Canada), is not limited only to peoples who are governed or subjected to foreign powers but is also extended to those peoples who, despite forming part of a democratic state, suffer limits to their right to self-government. In conclusion, we believe that in the current constitutional framework, interpreted in light of international jurisprudence and the fundamental principles and rights that inspired it, it is possible to legitimately exercise the right to referendum that is currently being demanded by a majority of the Catalan people. Barcelona, February 6, 2014