The Spanish prime minister Mariano Rajoy has said and repeated these last days that the referendum that the Catalan government has proposed is outside the law and, therefore, it is not democratic and cannot be called upon because it is against the Constitution.
Before this insistence and argumentation, six hundred Catalan jurists have published a manifesto in which the contrary case is argued. This is, they prove that the right to hold a referendum is democratic, constitutional and can therefore be exerted.
They remember, at the head of the text, that “the citizens of Catalonia have been asking for a long time the celebration of a referendum to decide the future as a country. As well, the great majority of the representatives of the Catalan people defend clearly this option and have requested that the Spanish institutions should give a response to it several times and by different means, without any success”. Confronted with this situation, the authors “active jurists in different sectors”, believe that they can show, by means of law, that there are instruments and cases to overcome the lack of understanding between the two governments”.
The jurists remember that in a democratic state, as the Spanish state is officially, it is “the very constitutional framework which allows the citizens to propose substantial changes in the political and territorial organisation and which offers instruments for them to do so. So it has been recognised in Canada and in the United Kingdom”, so that Quebec and Scotland have been able to celebrate “secession referenda” in a democratic fashion. As for the Spanish state, its “Constitution recognises the democratic principle as the base for its juridical and political system which allows to put limits to the capacity of decision of majorities on minorities (…). The current constitutional system does not exclude from legality groups or subjects that may have an idea of Law or state organisation different or contradictory to that of the constitution. In consequence we affirm that that in the constitutional framework and from its democratic principle a right -which we call ‘Right to decide’- is recognised, giving its subjects the faculties to dissent openly from the established order and also from the territorial unity, to propose alternative by means of democratic procedures -ordinarily referenda, as in neighbouring countries- and to achieve, by means of negotiation with State representatives, the obtained result”.
Coherently with these arguments, the signing jurists position themselves as giving “full support to the celebration of a referendum on the future of Catalonia as a polity. We understand -and we are not alone in it-, that this referendum fits in the Spanish constitutional ordainment” since, as it constitutes a democratic rule of Law state, it assumes the obligation to offer “the necessary instruments to allow for an exit” to the conflict between the two governments. “We also consider that a continuous negative answer from the State” to respond to the demands of the elected representatives of the Catalan people “would legitimise opening other ways for the Catalan citizenship to decide its future”.
Therefore they “declare that the celebration of this referendum is not only legitimate because it is reclaimed by a huge majority of the Catalan citizenship but also legal since their Right to decide stems from the Spanish constitution and a weighting of its own principles: rule of law and democracy as well as unity and sovereignty of the Spanish people. For this very reason, the celebration of a referendum can be juridically demanded to the State”.
The text of the referendum finishes with the precision: “we understand that Law can never be a mechanism to obstruct social change, quite the opposite: it must be the tool to gather evolutions and transformations of a community, giving the necessary answers to facilitate progress and good communal living”.
Chairman emeritus of the CIEMEN
Chairman of the PDD