One of the victims of the electoral advance in Catalonia was the Clarity Agreement. This is the name of the roadmap for holding an independence referendum that the Executive of Pere Aragonès aspires to agree with the central government and that it planned to develop during this mandate. Last October, the Government commissioned the Institute for Self-Government Studies – directed by the jurist and former secretary general of ERC Joan Ridao – to analyze the constitutional fit of a “Scottish-style” vote. And this Tuesday Aragonès himself presented the results. Ridao and his team insist, according to the document, on the path of article 92 of the Constitution, which allows the State to submit “political decisions of special importance” to a consultative referendum of “all citizens.” Aragonès, whose appearance to present the report in the middle of the pre-electoral period has been denounced by the PP before the Electoral Board, has responded to the popular ones: “I am not going to leave anything in the drawer.”
“The conclusions are clear: voting on independence is possible in the current legislative framework and it is only a matter of political will,” defended the Catalan president after meeting with Ridao at the Institute's headquarters. Article 92 of the Basic Law says: “Political decisions of special importance may be submitted to a consultative referendum of all citizens.” And he adds that this referendum will be “called by the King, through a proposal from the President of the Government, previously authorized by the Congress of Deputies.” According to the report, this point “does not raise serious objections of unconstitutionality” to an independence referendum.
The jurists consulted by the Generalitat emphasize that the Constitution does not expressly or literally oppose the holding of a referendum in which the support of citizens for a hypothetical independence can be measured, “as long as the results of that consultation open, simply, the doors to good faith negotiation between territorial actors.” The eventual implementation of its result, the text continues, would also have to be done within the framework “of constitutional and international legality.”
The text does not include any proposal for a minimum threshold of participation or result to consider the vote valid. He does consider, based on the recommendations of the Venice Commission (the advisory body of the Council of Europe), that the question would have to be binary (to be answered with a yes or no) and as clear as possible. And it recommends that it be limited only to the territory of the autonomous community of Catalonia and that the electoral roll be the same as that used for elections to the Parliament.
Given the possibility that this route of article 92 would be rejected, Ridao and his team of jurists also identify other alternative routes, although these, they warn, would imply legal reforms. One would be the modification of the Organic Law on the regulation of different types of referendum (2/1980). The other, which was the one that the pro-independence parties already tried in vain in Congress in 2014, a delegation to the Generalitat, through article 150.2 of the Constitution, of the powers to call referendums.
Before knowing the content of the report, the PP has announced that it will denounce the act of the president, considering that Aragonès is abusing his position to campaign for elections. Today's presentation, the popular ones maintain, goes “against the principles of objectivity, transparency and equality”, since the content is linked to the political program with which Aragonès is running in the elections on May 12: that of ERC. The Republican has replied that the assignment to the Institute for Self-Government Studies occurred last October and has stressed that he does not plan to leave anything “in the drawer.”
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The process to prepare the Clarity Agreement proposal began a year ago, when Aragonès created a group of experts from different ideologies to explore the legal possibilities of an independence referendum. That first report, which was released last October, proposed five scenarios for a referendum: only in Catalonia or in Spain as a whole, and with questions that were not limited to independence, but were open to other possible issues in Catalonia. within the State. Neither the other pro-independence parties nor the Government of Pedro Sánchez were interested in the proposal at the time, and the Government did not celebrate the participatory processes that it also had designed to evaluate it.
A referendum ruled out by the Constitutional Court
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The Constitutional Court has established since 2008 that an independence referendum cannot be held in Spain without first reforming the Constitution. Although it is consultative -non-binding- and has been agreed with the central government. An autonomous community cannot convene it nor can any other “organ of the State.”
According to the court, the main reason why this type of consultation would be unconstitutional is that, by asking citizens if they want independence, the authorities would be questioning “the very foundation of the constitutional order,” which is the existence of a nation.” unique and indivisible” and of a single “sovereign subject”: the entire Spanish people. This questioning can only be done, as interpreted by the Constitutional Court, through a reform of the Constitution.
These arguments appear in the fourth legal basis of ruling 103/2008, of September 11, 2008, with which the Constitutional Court annulled the self-determination consultation that the then Lehendakari Juan José Ibarretxe intended to promote in the Basque Country; a ruling to which the court itself later referred on different occasions during the processes Catalan independence movement. “The issue that has been submitted to the citizens of the Autonomous Community of the Basque Country for consultation affects the foundation of the current constitutional order […] and for this reason it can only be the subject of popular consultation through a constitutional review referendum,” said that resolution. And it added: “Respect for the Constitution requires that projects to review the constituted order, and especially those that affect the foundation of the identity of the sole holder of sovereignty, are substantiated openly and directly through the means that the Constitution has provided for these purposes. [en alusión a la reforma constitucional]. “There is no room for action through other channels, either by the Autonomous Communities or by any State body.”
The legal report prepared by the Institute of Self-Government Studies of the Generalitat, and presented this Tuesday by the president Pere Aragonès admits the existence of this Constitutional jurisprudence; but, to get around it, he alleges that it responds to a context of “conflict between Catalan institutions and state institutions”, in reference to the processes. Now, the report points out, the context would be different, because the referendum would respond to an agreement between the Generalitat and the State and the result of the consultation “would simply open the doors to a negotiation in good faith” between both. The jurisprudence of the Constitutional Court, however, was not established during the processes but before, in response to Ibarretxe planwhich was not a unilateral rupture plan like that of the Generalitat but rather followed all legal channels until it was overthrown by the Congress of Deputies, first, and then by justice.
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