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Interview with His Honor Santiago Vidal i Marsal, Magistrate at the Provincial Court of Barcelona

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I recently had the opportunity to interview Mr. Santiago Vidal, a Magistrate at the Provincial Court of Barcelona and renowned scholar of constitutional law. We met at his office in the Palau de la Justicia in Barcelona to discuss the constitutional and legal implications of the “Catalan way” and his vision for the future of Spain. What follows is a condensed summary of our dialogue, not a verbatim transcription. The opinions expressed belong to the person being interviewed and none of the declarations or assertions have been validated by me. Any error in expression or translation is wholly my responsibility. The person interviewed has reviewed this document prior to its publication.

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(CS) In May 2014, you participated in drafting the model for a hypothetical Catalan constitution, a collaboration that provoked certain questioning by the General Counsel of the Judiciary (CGPJ). What happened?

(Mr. Vidal) I wasn’t working alone, it was a collaboration with a group of jurists: four judges and six professors of constitutional law. We began working on a draft constitution that might serve in some future occasion for those who would have the legitimate authority to create a new constitution if finally Catalonia were to become an independent state. We certainly don’t mean to supplant that authority or to condition its work in the least. The task and the responsibility for the new constitution would belong solely for the new constituent assembly.

The General Counsel (CPGJ) also wanted information regarding my participation in this effort. I explained that this was an individual initiative; no one commissioned us nor was it on behalf of any party, private organization or official agency. It is the collective initiative of a group of citizens who also happen to be experts in the law, with a great enthusiasm for our hypothetical exercise. And with the hope that it will be made a reality, of course.

I don’t think we’ll see it before 2017. I don’t think the circumstances will permit it before then. The most important thing is that it all be accomplished without violence.

(CS) What’s in the draft constitution? What kind of state is proposed?

(Mr. Vidal) We propose a republic – not a presidential one – similar to the model they have in Germany. A Catalan Republic, not a monarchy: monarchies have become relics of Europe’s past. Those that have survived have their charm; an emotional attachment, but they aren’t good for anything.

We propose to establish the right to hold recall referendums, like in Switzerland, for those public officials, municipal and state, who lie or abuse their powers in a flagrant manner. It would be best if these people would simply resign their posts, but as we well know, no one in this country ever resigns; so we wish to establish a mechanism to allow the people to remove them.

It would be a unicameral legislature composed of a single Congress. We would also like to establish a constitutional prohibition to prevent any party from enjoying an absolute majority in the legislature. Regardless of the number of electoral votes received, the maximum representation any party could achieve would be 49% of the seats. Absolute majorities have proven to be perverse in their effects on society; they always lead to corruption, arbitrariness and abuses. In Spain, we have had a very bad history with such majorities, both with the People’s Party and with the Socialist Party. We believe that parties should always have to negotiate any change to the fundamental laws. We think this to be an even better solution than qualified majorities, because it applies to the entire legislative effort, not just to certain laws.

We also recommend setting term limits of two legislatures for all politicians, regardless of the level at which they exercise their charge, be it municipal, regional or state. Eight years is long enough to be in the public service, it should never become a career in which politicians encrust themselves at their posts. They too should be obliged to live by private means and we think this is wisest course: politicians should have life experience outside of politics.

I should mention that the official language of the Republic would naturally be Catalan, but that the constitution ought to recognize Spanish as a co-official language. Not to do so would be a stupidity, and we are not stupid people.

(CS) The Constitutional Court has accepted the Spanish government’s petition against the Consultation Law signed by President Mas, and has suspended all preparations and official communications related to said consultation.

(Mr. Vidal) With one important nuance: what is called a precautionary suspension does not permit any executive action that might infringe said suspension. But naming an organizing committee – is it an executive action or not? If it does not have an immediate consequence, it is not executive; the only executive action taken has been the signing of the Consultation Law, which occurred prior to the precautionary suspension. The naming of an organizing committee is by nature preparatory, not executive, and therefore permissible. So is, for example, the preparation of ballot boxes; it is preparatory, not executive and in no way infringes the suspension. “Executive” requires action; preparatory enables action but does not require it. If the Constitutional Court fails to lift the suspension prior to the 9th of November, nothing will happen: the ballot boxes will remain unused and the organizing committee will be under no obligation to hold the consultation, it can continue to prepare.

This is only logical: imagine that the Constitutional Court decides to lift the suspension on the 7th of November; then the Consultation Law would come back into force, but there would be no time to implement it. In order to comply with the obligations established in that law, one has to be prepared to do so: this in no way contradicts the conditions of the precautionary suspension.

Now there are certain persons who accuse Mr. Mas of contempt for the Constitutional Court or of malversation of public funds through the continuation of the preparations. This is not the case: it is not malversation to spend public monies that have been authorized and budgeted by an Act of Parliament, it is only a fulfillment of what has already been approved. What’s more: as President, Mr. Mas is under legal obligation to comply with the Consultation Law, so long as it does not infringe upon the suspension. And as I’ve said, the only executive action undertaken so far was the signing of the law.

(CS) What is the process that the Constitutional Court will follow in its deliberations? When can we expect a judgment?

(Mr. Vidal) It is true that the Constitutional court has not historically been the most expeditious body. When it annulled large parts of the reformed Catalan statute in 2010, its deliberations had taken four and a half years. The law does not establish a maximum period for the resolution of such issues, but it does establish a maximum period for the precautionary suspension: it is five months.  But I trust that my colleagues on the Court will decide the matter of the suspension much sooner than that. They have seen the enormous display of popular will by the citizens of Catalonia and I believe they must take this into account.

My belief, and my desire, is that before the 9th (of November) they will lift the suspension. The final decision on the deeper issues can take longer, because the vote on the 9th is not binding, it is not irreversible. This is a non-binding consultation.

(CS) Yet no one believes that it will fail to have an enormous impact if it is held.

(Mr. Vidal) Of course it will have a political impact, that’s obvious; but it will not be legally binding. This is critical. No one can say: “look here, you have to implement the decision of the consultation, or else we’ll take you to court.” This is a very important difference, it is fundamental.

It really bothers me that the word “referendum” is bandied about so carelessly: this is not a referendum, it is a consultation. One can say that we are only playing with words, but that’s not true at all, it is legally an important difference. A consultation, because it is non-binding, does not violate Article 92 of the Constitution[1]; no one disputes that. Some also say that the consultation is “only a covert referendum”, but that is merely an interpretation, an opinion. The only body that can give a definitive interpretation is the Constitutional Court.

(CS) Will the Court deliberate in isolation or has it called for representatives of the opposing sides?

(Mr. Vidal) The Court has asked for written arguments from the Council of State, an organ of the Spanish government, and from the Catalan Parliament. The deadline for presenting these is the 14th of October. After that, the Court can meet in full session on any day at any time – like they did on the 29th of September![2] – to deliberate the different aspects and legality of the Consultation Law.

The first order of business will be to decide on whether or not to lift the suspension; but the more profound questions will take various months due to their enormous importance and their implications for the nation.

(CS) If the consultation were to be held on the 9th of November, and if the “Yes” vote were to win, and if the Spanish government were to recognize the result, what would be the next steps from a legal and constitutional point of view? How would a hypothetical transition be handled in such circumstances?

(Mr. Vidal) The next step would be after 3 or 4 months for the Parliament to adopt a resolution directed to the Spanish Congress of Deputies requesting the modification of the Constitution, specifically Article 2, which deals with the indissolubility of the state. In accordance with the Organic Law 42.14, the Congress would be obliged to admit and debate that request – what they decide afterwards is another matter, of course!

What might happen afterwards would be pure speculation on my part. But common sense should guide us all in this matter: the Congress would have before it an overwhelming expression of the will of the Catalan people. In the end, there would have to be a negotiation between the two governments, between the two nations. They would have to face that.

(CS) The Spanish press has made mention of threats to “suspend” Catalonia’s Charter of Autonomy referring to Article 155[3] if the Generalitat fails to obey the decision of the Constitutional Court and the central government. What are the legal tools available to the government to enforce compliance?

(Mr. Vidal) In the face of an exceptional situation of reiterated disobedience – a situation we are not in today – the Congress and the Senate together could by supermajority vote, authorize the measures deemed necessary to oblige compliance with the law.

“Necessary means,” which has never been defined legally, you can fit almost anything – almost anything except the use of force. Some politicians have said: “if they bring out the ballot boxes, I would send in the tanks to take them away.” It is one thing – a very irresponsible thing I think – for politicians to talk about the use of force, and another thing is to get to that point; but it would destroy the constitutional system. The right to vote is a constitutional guarantee and that will be the detonator at the heart of the crisis. Those who threaten will come to realize that they cannot possibly fulfill these threats when there are 2 or 3 million people demanding their right to vote. How will they impose themselves? In the ‘30’s, they did it with tanks, to be sure; but today thankfully it simply isn’t possible to act in this manner. Force is doomed to failure; it would not be tolerated in Europe.

If they don’t come to an agreement, the ultimate word will belong to the Supreme Court. That is why it exists. Laws do not exist in isolation; they are there to resolve political and social disputes. The function of the Court is to adapt the law to social reality.

(CS) There has also been talk of a constitutional reform and a “third way” to resolve the crisis between Spain and Catalonia. How do you see this possibility?

(Mr. Vidal) The constitutional reform, which is finally being proposed by the Socialist Party, is both viable and necessary – and I think it will become a reality after the next elections.

(CS) Are you referring to the electoral impact of Podemos?

(Mr. Vidal) Precisely. The immense majority of Spaniards are convinced of its necessity because the current constitution has become obsolete. It no longer meets the needs of society and this has become obvious.

Regarding Podemos, they will force the People’s Party to finally adopt – or accept – these measures regardless of how obdurate they are in refusing to admit them. When they find themselves alone, without an absolute majority in Congress and all other political alignments united against them, they will be forced to accept it.

(CS) In your opinion, what aspects of the current Constitution ought to be reformed?

(Mr. Vidal)  There are three items:

  1. Suppress Article 2 and recognize that Iberia is composed of five historic nations: Portugal, Catalonia, Euskadi, Galicia y Castile. This is the plurinational reality of the peninsula and from this point, we can begin to construct a new, more inclusive, political structure for a future Iberian Republic. There would be a political center, but with equality and multilateral cooperation between the nations, and all of them integrated into the European Union. I believe that this will eventually come to pass, but when? I don’t know.
  2. In terms of the political system, as I’ve already discussed: eliminate the monarchy and institute a republic. Regardless of your opinion of the present or previous monarch, the institution no longer has any function in society. I believe the current king has his days in office numbered.
  3. Institute a true separation of powers between the branches of government. Today there is a formal separation, but it is not real in practical terms – all the institutions of the state are in the same hands. The People’s Party is the executive and also enjoys an absolute majority in the legislature. Meanwhile the highest level of the judiciary is also chosen by them. What kind of democracy is that? Even if it weren’t the People’s Party in charge; for that reason we have eliminated the possibility of absolute majorities in our draft constitution.

(CS) The public position of European leaders (for example Jean-Claude Juncker, Angela Merkel, José Manuel Barroso) is that an independent Catalonia would be outside of the European Union and the Euro zone. Can you give us your opinion regarding the nature of the European laws and treaties that deal with the subject of admission to the union?

(Mr. Vidal) I’ve had the opportunity to study this issue in depth and my opinion – which coincides of that of more than a hundred European professors of law pertaining to the Prague Group – is that the question simply isn’t contemplated in existing law. Therefore the declarations of the aforementioned politicians only represent their personal opinions, they are not legally binding.

The possibility that a territory pertaining to a member state should separate from it is not dealt with, nor is the consequences: that citizens should lose their citizenship and that frontiers should be raised where none previously existed. Furthermore, there is no guidance as to what legal regime should be applied to a readmission process, in the case that the territory was outside of the Union: would it be the ordinary process or an accelerated one? After all, we would be dealing with a territory which had already been part of the Union and whose legal and regulatory framework was already perfectly aligned with European norms. It would make no sense to apply the same process that might be required of a more dissimilar state, like Ukraine.

In the end, European pragmatism would oblige them to deal with this issue. No one believes that these new states would remain outside of the Union indefinitely: for a time perhaps, but not a long time. It is unthinkable and damaging to all Europeans, not just those declaring independence. Besides, the Catalans have publicly and repeatedly expressed their desire to continue forming part of the European Union; we’re not dealing with a people placing any conditions on their participation. The changes will come, but only when Europe sees itself obliged to make them.

(CS) In terms of a hypothetical transition period to independence, how would this impact the legal and regulatory framework in Catalonia for businesses and foreign investors? What should they take into consideration to safeguard their companies and investments?

(Mr. Vidal) This is actually a very easy question to answer, because it is already well-defined in international and European law. The law has established the principle of continuity: from the moment a new state is created out of an existing one, it assumes all of the obligations of the original, nothing changes. All the regulations and laws continue in operation. Spanish law would remain in force during a period of 3 to perhaps 5 years, while the Catalan state goes about passing new laws. Therefore, there would not be the least uncertainty for businesses or investors, their rights would be as well protected as they are today.

(CS) Thank you for granting me this interview, for your time and for your courtesy, Mr. Vidal.


Sources and Notes:

[1] “Article 92.

  1. Political decisions of special importance may be submitted for a consultative referendum of all the citizens.
  2. The referendum shall be convoked by the King at the proposal of the President of the Government after previous authorization by the House of Representatives.
  3. An organic law shall regulate the conditions and the procedure of the different kinds of referendums provided for in this Constitution.”

[2] The day the precautionary suspension was imposed

[3] “Article 155.

  1. If an Autonomous Community does not fulfill the obligations imposed upon it by the Constitution or other laws, or should act in a manner seriously prejudicing the general interest of Spain, the Government, after lodging a complaint with the President of the Autonomous Community and failing to receive satisfaction therefor, may, following approval granted by an absolute majority of the Senate, adopt the means necessary in order to oblige the latter forcibly to meet said obligations, or in order to protect the above-mentioned general interest.
  2. With a view to implementing the measures provided for in the foregoing paragraph, the Government may give instructions to all the authorities of the Autonomous Communities.”
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