"Negotiators?" by Jordi Domingo (22 Sep 2018)

Here is an English translation of the article "Negociadors?" by Jordi Domingo, the eminent jurist.
If the author or the editor object, please let me know at once.
 

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https://www.vilaweb.cat/noticies/negociadors-opinio-article-jordi-domingo/

Negotiators?

Jordi Domingo

22 SEP 2018

«Do you lot expect the independence moviment to move back to the square it was on eight or ten years ago, and forget about the history, the suffering, the struggle? You'd better ask yourselves why it used to be residual and why now -instead - it continues to grow exponentially»

As I said in a VilaWeb article, when we talk about negotiation we always need to be perfectly clear. No subterfuge or traps are uallowd. What has changed since then? Very little in what is substantial. On the one hand, we continue to verify that we don't live in a true democracy; the hostages are still held; there are still people in exile; the preparation of the trial against our leaders is still a farce; and the supposedly Spanish left (PSOE) has replaced the most recalcitrant right in the Spanish government and does its utmost to continue demonstrating the truth of writer Josep Pla's arguably most famous statement: "There is nothing that looks more like a Spanish rightist than a Spanish leftist". In the meantime, and this is the most important thing, the citizens remain firm and upright. Most of us show day by day, National Day by National Day, that we persevere and persist for what we want: the Catalan Republic.

In this context, self-serving voices emerge once againt, wrapped in mantle of apparent affability, equidistance or mock neutrality, to call for dialogue and negotiation. And they end up, every one of them, with the familiar tune that "negotiating means yielding", so we are led to believe that the independence movement will have to give up on its right of self-determination, for unless it does so, it will be will acting in bad faith or with no wish for dialogue. We observe that this specific call, made indistinctly by people on the right and on the left, is never made to those who defend the unity of Spain, or the parties that supported article 155, or the federalists, or the equidistant people of all kinds. But - leaving that to one side - this is a completely fallacious approach.

Working as a lawyer I have negotiated and engaged in dialogue for more than forty-three years. I am a firm defender of this. When there is conflict, first of all, you need to seek to build bridges to bring the parts closer to one another and then apply whatever patches that may be needed. Open and continuous confrontation is never the best solution. But sometimes it is indeed the only one that's left.

The obvious trap

 

In order to reach agreements, good negotiating faith is needed. This is why respect for the the party is necessary, and it is inescapable to maintain the maximum fidelity to what has really happened. Consequently, the first thing to do is to know the history and background of the conflict. For when one party does not want to admit or accept its own history, its mistakes and everything that has led to the point it did not want, and only has the obsession to put the stopwatch at nought to try to humiliate and annihilate the other, then what dialogue and what negotiation are we talking about?

I explain all this because these days I feel charlatans, tricksters and swindlers who seem to want to make us believe that the 'conflict' emerged exclusively from the events of September and October 2017. If that were true, we would have to negotiate a way out in which the independence movement would have to give up any claim to independence. The trap is obvious. If you really want to talk about the conflict between Catalonia and Spain, why do you always aim to deny Catalonia its historical legitimacy? Why don't you want to be objective and analyze how Spain has literally dragged the majority of Catalans into the independence moviment? If you aren't honest or courageous in this, no dialogue is possible. There is no 'minimum common denominator' that can be useful at any negotiating table that you propose. It's a mere parody.

The mistake of leaving history aside

The first historical reality that needs to be known, and acknowledged, is that in 1714, all our individual and collective rights, as well as our recognition as a people, were taken away at gun point. Overlooking this is the first great mistake that is made when you want to deal with the history of the conflict. Unless we are respectful about this, how do you want us to believe in your purported good faith when it comes to proposing dialogue and negotiation?

But if we want to limit ourselves exclusively to what has happened since the death of Franco, the dictator, we need to bear in mind that the historical legitimacy of the Generalitat of Catalonia was absolutely recognized by the Spanish government with the return of the Right Honorable President, Josep Tarradellas, even before the debate on, and adoption of, the 1978 Constitution. That is, all those who want to annul the legitimacy of the Generalitat basing themselves on what the Constitution apparently says do not take into account an important element: that the Generalitat was there before the Constitution.

On the other hand, in 1977 Spain ratified several international treaties that had been promulgated in 1966, based on the 1978 Universal Declaration of Human Rights. Specifically, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (BOE 103, April 30, 1977; references 10733 and 10734, respectively). Both treaties say, in article 1.1: 'All peoples have the right of self-determination'.

Later on, the 1978 Spanish Constitution stipulated, in article 10.2: 'Provisions relating to the fundamental rights and liberties recognised by the Constitution shall be construed in conformity with the Universal Declaration of Human Rights and international treaties and agreements thereon ratified by Spain'.

And the Constitution laid down, in article 96.1: 'Validly concluded international treaties, once officially published in Spain, shall be part of the internal legal system. Their provisions may only be repealed, amended or suspended in the manner provided for in the treaties themselves or in accordance with the general rules of international law'.

With this backdrop we reachjed 1981, when the crown, represented by king Juan Carlos I, made a first coup d'etat that led to a cutback in democratic principles and in Catalonia, specifically, a great leap backwards with respect to its national aspirations (let us at this juncture remember the 1982 LOAPA).

The effective break with Spain

Even so, it must be admitted that the effective break between Spain and the majority of Catalonia's citizens did not arrive until 2010. Until then, most of Catalan society admitted (with more or less acquiescence or rejection) such prosaic policies as those of 'fish in the bag' or the pragmatism consisting of trying to find points of contact and the famous 'fit' of Catalonia inside Spain. That is to say, 'to be Spanish in our own way', with full respect - by Spain - of the idiosyncrasy of Catalonia, the language, the culture and its own economic and social development.

In 2003 the elections to the Parliament of Catalonia took the first tri-party coalition to the Government of the Generalitat (with Rt. Hon. Pasqual Maragall at its head). Right then, the Spanish prime minister, José Luis Rodríguez Zapatero, promised, before 20,000 people concentrated at the Palau Sant Jordi in Barcelona, ​​'to support the reform of the Statute that emerges from the Parliament of Catalonia'.

On September 30, 2005, Parliament passed the statutory reform with the only contrary votes of the Spanish People's party (PP). In accordance with the constitutional pact, a delegation of the Parliament defended the content before the Spanish Congress of Deputies, which cut it back to its heart's delight (with the great hilarity and public satisfaction, by the way, of a well-known representative of the PSOE, Alfonso Guerra). And despite this, the Catalan people ratified it (in June 2006) by means of a referendum.

In July 2006, both the Spanish government (Sr. Rodríguez Zapatero) and the Head of State (King Juan Carlos I) signed and ratified the content of the new Statute.

In short, Catalonia, scrupulously complying with the laws of Spain, obtained a new Statute that was duly ratified by the Spanish primer minister and head of state.

However, as is well known, the PP undertook a campaign to collect signatures 'against Catalonia' and lodged an appeal against the greater part of the articles of the Statute (128 out of 223) before the Constitutional Court.

We already know the result. Constitutional Court (CC) judgment 31/2010 ruled that 14 of the articles approved by the Parliament and the Congress, accepted in a legal referendum and ratified by the prime minister and the head of the state, were unconstitutional (although, let's say it all, some were and still are in force in other autonomous communities).

The constitutionalist Javier Pérez Royo, a University of Seville professor, said that the 2010 CC declaration was formally a judgment, but that was materially a veritable coup d'état that literally destroyed the so-called 'block of constitutionality'. He speaks about the pact contained in the 'territorial constitution', which is the agreement between two parliaments: those of each historical nationality (Catalonia, Basque Country and Galicia) and the Congress of Deputies, ratified by the electoral body of the respective nationality. Well, the judgment broke this pact (in reference to Catalonia) and shattered the so-called 'territorial constitution'. (We can read, among other things, the article published by Javier Pérez Royo, on 27-10-16 in Tribuna, entitled '¿Por qué golpe de Estado?’ - "Why coup d'état?") It is precisely from this milestone that the real, definitive royal divorce between Catalonia and Spain began. 

At that time, the so-called independentistes (or separatists) were in a clear minority in Catalonia. The presence they had in the Catalan Parliament and the Spanish Congress since 1978 was, until 2010, small, if not residual. And it was from that moment that it began to grow. When it was seen that Spain did not want to seduce or to win hearts. It only aimed to impose. Even when their rules of the game are respected and a Statute is drafted by following, step by step, its regulated procedure, the democratic will of a whole people is not accepted.

To leave aside all these antecedents is to act in bad faith. They tried to take us for a ride, denying the evidence of the events that took place. Wanting to negotiate or discuss - in apparence, objectively - for the resolution of a conflict and hide everything that has happened over histor, is cheating

How did we get to the divorce?

Anyone who proposes to speak cannot overlook how we got to the divorce. For no-one can say that the process of growth of separatism since 2010 has been been violent or un-democratic. The movement has been civic, democratic and peaceful. The demonstrations of each September 11 have been exemplary. No riots, no chants 'against anyone'; not a scrap of litter on the ground. Each mobilization has been multitudinous, respectful and completely peaceful. And the movement has grown exponentially with people of all kinds and origins. Rightists and leftists; with or without a good economic position; born in Catalonia or newly arrived; beneficiaries of linguistic normalization or not; with a host of races, languages ​​and religions.

Trying to hide this is another great mistake for those who call for dialogue and negotiation, while denying facts and the evidence with the sole intention (let's say it openly) of conditioning - exclusively - the proposals of those who want to decide our future as a country and of those who have already voted for the Catalan Republic in a referendum.

For those of you who have not wanted to understand that the claim of the vast majority of Catalans was to be respected in the 'right to decide' have also committed a serious mistake. It was to be democratically asked about what the relationship with Spain was to be. Some, evenwere interested in finding out what Spain was willing to offer them to avoid secession, and with all due respect to the decision taken by the majority. In short, a binding referendum such as those that other democratic countries (such as Canada or the United Kingdom) had agreed with existing nationalities in their state.

These are the facts or events until the summer of 2017, which are essential in order to try to understand the reality of Catalonia and Spain. To ignore them, as if they had never happened, is to deceive everyone. It makes us waste our time. It is to think, from a position of arrogance and domination, that the Catalans ought to admit that the path we have travelled was not justified or grounded.

The mistake of hiding who wants the confrontation

Another very important mistake is hiding the identification of those who have wanted - and want - there to be disagreements and breakdowns. For confrontation (fortunately not the success they hope for) has been promoted, from the very first day, by those who are not sympathetic to the legitimate and democratic aspiration of a large part of Catalan society.

A quick look at the media archives suffices to find out how, as soon as the idea of ​​a sinking soufflé lost weight, the unfounded accusations of violence by the pro-independence movement (Girauta, Nart, Fernández Díaz and so many others) increased.

Girauta, for example, as a member of the chat show that Josep Cuní ran at 8TV, preached and insisted (in January-February 2014) that all violence that there might be in the country would be blamed exclusively on Sra. Carme Forcadell (as chair of ANC at that time).

Later, from related sectors, there have been statements aimed to terrify, such as: 'We will lay on a Ulster for you that will make you shiver' (attributed to Jordi Cañas); 'No-one can even imagine the levels of violence that will be reached' (Inés Arrimades); 'Catalonia is on the verge of a civil confrontation' (Josep Borrell). Or, definitely the most disturbing one, the annoucement by Minister García-Margallo, who said in public: "From August, things will begin to happen in Catalonia." He has never dared to explain this statement - to my knowledge - despite the fact that the only transcendental fact was the terrorist attack on August 17, 2017, with the more that suspicious intervention of the imam of Ripoll and his proven connection with the CNI.

To collaborate in hiding or silencing the historical foundations of the conflict, as well as to legally and politically distort the events - which has been done by both the State and its courts, the Article 155 parties and the related media - is to deceive the people.

The familiar singsong

It is always good to talk about negotiation and dialogue. To say this now, denying history and the background, may mean only platitudes that will not lead us anywhere. If those that spew out this message are those that tolerated - without shame or reserve - the repression of Article 155, we need to be fully aware of this so as not to be tricked.

It is perfectly obvious that that the Catalonia-Spain conflict 'should never have left the framework of the political debate': another platitude. It is as obvious as the fact that Spanish politicians ought to have offered solutions to the legitimate aspirations of Catalonia. First of all, by not rejecting a Statute adopted in accordance, step by step, with Spanish legislation. Then, once having admitted that the State had broken the constitutional pact unilaterally, it ought to have sought to rebuild it with as generous a negotiation as possible. Later, once the mistake of failing to address this unilateral break and of ignoring the negotiations repeatedly offered by Catalonia, it ought to have admitted the "right to decide" called for by more than 80% of the Catalans, as an effective solution of the problem, using the same mechanism as in some other democratic countries.

None of this was done. There was no empathy, no desire to reach out or to win any hearts. No reasoning, no exciting project on the table. Neither rightist or leftist.

All that happened was the constant refusal to listen and to recognize (in the short, medium or long term) the rights of Catalonia and of the Catalans. No reason has been given for someone to be interested in carrying on being Spanish. A true national flop. An utter failure. All the pillars of the State were cracked from top to bottom. No-one in Catalonia has any respect for them anymore. The monarchy, the 1978 regime, justice, the security forces, the economy, social security, debt, everything is gettinb out of your control. It's a matter of time. Probably, much less than you think.

You have decided to leave everything in the hands of mere repression, from the old 'Death to the intelligentsia' and from the more modern 'A por ellos', 'Go get 'em', to the ultra right wing, to the Bourbons, to the people without honesty or ideas. Now you cling absurdly to the fight against yellow. As if this were going to take you anywhere. Without realizing that all you have left is hatred as a theoretical argument against those who do have a project that inspires us.

We shall not give you the pleasure of violence. Not ours. We shall continue standing firm. We shall persevere and persist, for this is our cornerstone. If any one of you (155ers or the equidistant guys) wants to sincerely discuss and negotiate, may you be, at the very least, honest and courageous.

Sovereignty has leapfrogged plenty of stages. More than you would not have liked, yes. What did you expect? We warned you and you chose not to see or listen. And now, do you lot expect the independence moviment to move back to the square it was on eight or ten years ago, and forget about the history, the suffering, the struggle? You'd better ask yourselves why it used to be residual and why now - instead - it continues to grow exponentially.

You can start by looking at yourselves in the mirror and recognizing that the exponential growth of the independence movement has been directly influenced both by the ineptitude and foolishness of those who dominate Spain and by the accommodative cowardice of ethe quidistant guys.

You can start by acknowledging that history is what it is and not the one you are trying to impose. You can start by acknowledging that you had plenty of trains in front of you and you chose not to catch any of them. You can begin by repudiating both judicial repression and the presssion unleashed on the first of October.

You will have to do many things first, if you want to build a single bridgehead for negotiation. The only one there is right now: the bridge head that acknowledges the right to decide of the Catalans. The right of self-determination.

For unless you want to agree to this, the only way left for us will be the Republic voted on the first of October. That is what most of our people demand from our politicians.

Rights rather than laws

Accepting (as many of you say) that only the concept of legality (treated in the most literal and strict way) is sustainable means two things: that you have forgotten - in a self-serving fashion - that a permissive interpretation for a binding referendum (if there is political will to do so) was, and is, perfectly feasible; and that you absurdly deny the possibility of any attempt by any minority in the world to fulfil their aspirations for freedom or to enjoy more social rights when they are not fully recognized.

All social movements (revolutionary or not) that have occurred in the course of history have always been based on the legitimacy of the people to defend their rights that were not legally recognized.

In other words, first comes the right and then the law. The law can be unjust. And when it is, the regime that sustains it puts in place all the necessary (legal or illegal) obstacles so that nothing can change.

Do you really regard yourselves as being 'bona fide' and legitimized to advocate negotiation and dialogue, if you are incapable of listening, weighing up and assessing (and I'll leave out the word accepting) the legitimate aspirations of the people? How can you hope to embark upon a bargaining process of this magnitude if you display zero sensitivity?

Catalonia's history, ancient and recent, shows us that there are more than enough legitimacies to support the aspiration of the right to decide and the aspiration to become an independent country (whether you agree or not, whether you like it or not).

To say that 'in this process, fundamental laws have been violated' is to deceive, and to shirk the issue yet again. It means taking as an absolute truth the position of one of the parties and also overlooking our most recent history. It means beating about the bush and not wanting to get into any controversy that, most likely, would lead to statements opposing what is sustained. First of all it should be said that the Constitution has been modified unilaterally when it has suited the powers that be. Without scruples. Without any hindrance that a 'sacred and immutable' text would prevent. 

For was it not modified in a record time (hours) and without any popular consultation when there was a will to reassure Europe that the payment of bank debt would always be a priority for Spain? And don't you ever have anything to say about this ad hoc reform, done 'by night and treachery' (against the interests of citizens and in favour of the banks, financial power and the most powerful)?

Was it not modified, indirectly, when the parliamentary majority of the PP decided that the mediating nature of the Constitutional Court (recognized in the constitution so as to resolve in essence conflicts between administrations, with a minimum sanctioning power) had to be changed radically, by giving it an extremely powerful punitive capacity and a power of implementation that it did not have? And isn't the unilateral breaking of the constitutional pact denounced by Professor Pérez Royo valid, likewise, to put us in context?

Of all that has happened with the brutal transgression - ham-fisted and ignominious- of the fundamental rights of Catalan citizens and their democratically elected representatives, by Spain's executive, legislative and judicial authorities, there is more than enough literature and - in view of the European courts' response - categorical and unequivocal - you really ought to start thinking that your passivity and condescension with indiscriminate and unjust persecution was quite wrong. Am I wrong?

By the way, the Constitutional Court has already had its say on what happened on the 6th and 7th of September 2017 in the Parliament and that, all of you, turned into in a coven get-together of filibusteriing and frontal opposition to the democratic debate. The single reading procedure was, and is, constitutional (whether or not we particularly like it). Nor can it be argued that there was no amendment procedure when the Parliament's Hansard records transcribe it and, at the same time, state the result of the voting. Little can be added, then.

Catalonia is moving ahead and, I am quite certain, there's no turning back. If we persist and persevere, if we put our skills at the service of the country, nothing - no-one - will be able to prevent what we so keenly want. There are those who will have to push and those who will have to pull. But we are all needed. And the more we pull, the more we will help to consolidate positions for a future negotiation. We already have the charted course: it is to make the Catalan Republic effective, as soon as possible. For if we make it effective, the content of a hypothetical negotiation will then be very, very different.

Negotiators in good faith will always be welcome because, sooner or later, something has always to be negotiated. So, tricksters, charlatans, and swindlers, please get lost.