Details about the draft Catalan Constitution, by Santiago Vidal

Interview with the Barcelona Court judge · A group of experts is preparing a constitutional document to serve as a foundation for the new Catalan state

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The newspaper El Mundo published Sunday a report on what it called “Catalonia’s secret constitution for 2014”, a draft of a constitution for a new Catalan state that a group of ten experts has been preparing for the last ten months. Santiago Vidal, the Barcelona Court judge who forms part of this group, confirmed yesterday the existence of the document, which is still unfinished. In this interview clarifies some information published by El Mundo and adds additional information. He gives concrete details about some of the articles in this document and insists that it’s not an official assignment from any institution or party. He does admit that it comes out of the suggestions from a group of parliament members from various parties. He warns at the outset that he can’t explain the entire document, out of prudence and professionalism, but he does talk about mortgage law and term limits, to give a few examples. He also anticipates that there will be no Constitutional Court, but rather a court of judicial power focused on constitutional guarantees, formed by members elected by the citizenry… And he remarks that the new text “has nothing to do with the Spanish Constitution”.

Was this constitution an official assignment?

No, it was not, not from the Catalan Government nor from the Parliament. Or from any particular political party. I say that because the journalist from El Mundo who published the information made it seem like it was an official assignment from CiU and Esquerra, and that’s not true. There was no official assignment from anyone. Now, it wasn’t a personal initiative either, from ten loose cannons. Some members of parliament from some sovereigntist parties suggested it to us last January. That is, that we, as experts, write up a first document to help them out, a first draft or foundational document of the hypothetical future magna carta of the Catalan republic.

Who are the members of the group?
We are a group of judges, constitutional law professors, and also a few lawyers specialized in the matter. I can’t tell you names. But that’s not significant. You’ll find out when we make the document public.

When will that be?
At the end of the year, after the referendum. In fact, according to the result of the referendum, which will determine Catalonia’s new status to a fair extent, there are articles that can change. We have sixty of them written so far. And we want, if possible, for there to be no more than one hundred.

A short constitution…
Precisely, one of the things that was very clear to us from the beginning is that we should take inspiration from the Scandinavian constitutions as well as a little from that of the United States. What does that mean? That it be a declaration of real principles and that there be few articles, if possible, no more than one hundred. Remember that the Spanish Constitution has 169, each with subarticles, and then there are the ‘additional dispositions’, that act like articles. We want at the most one hundred short articles, with a single paragraph each, containing three clear, concise lines. In addition, we want the interpretation of the articles to be able to evolve. They can’t be immutable texts. The principal problem with some constitutions, like the Spanish one, is that they use legal protection as an excuse to avoid adapting with the times. The more words an article has, the more difficult it is to adapt to the social reality of changing times. Therefore, it’s important to be concise, clear, and use just a few words.

Which are the principal differences with respect to the Spanish Constitution?
They won’t be anything alike. The Catalan Constitution will be very different, that I can tell you. It won’t resemble the Spanish one at all.

What are the main things that must be changed?
There are many things, but I’ll tell you about three of them. that is, in the seventeen chapters that it will have, I’ll outline three, that have nothing to do with the Spanish Constitution, even though there are many more differences with the Spanish Constitution. The first is the clarity of the first chapter. This chapter is the one that in democratic state constitutions is dedicated to fundamental rights. The draft constitution that we are proposing is particularly clear and concise in this regard. No long, convoluted definitions.

For example?
Starting with the legal-political configuration of the new state. In this case, I can tell you that in the draft we opt for a republic: a non-presidential republic, with a president and a prime minister, following the German model more than the French one. And the description of fundamental rights: liberty, privacy, etc.

What are the other two chapters that change radically with respect to the Spanish Constitution?
The second is the chapter dedicated to social rights. I’m not in charge of that chapter, because I’m not an expert in that field, but the difference lies in the fact that it won’t be limited to a mere declaration of principles like in the Spanish Constitution. One example: the Spanish Constitution says: “All citizens have the right to decent housing.”

Right, which is not fulfilled by a long shot…
Yes, because afterwards they say, “when there is money, when we can…” Well, no. That can’t be. Private property, in this case apartments, is always recognized as long as it fulfills a social function, not for speculation. If that is not fulfilled, this private property must be able to be expropriated by the legitimate representatives of the popular sovereignty. This chapter of the draft constitution says similar things, very directly. We are very specific. And, for example, among the six or seven specific rules that regulate this area, there will be a specific prohibition of the speculatory financial system and a very clear opening for the ordinary legislator, who is later the one who has to develop the constitutional mandate into concrete laws, so that they allow, for example, satisfying a mortgage by returning the collateral property in question [currently not permitted under Spanish law]. That would be a big change.

And the third chapter?
It’s the one that refers to the legal sphere, which is the one that I’m working on. The idea is to change the current legal system, based on the Spanish model, from top to bottom. We defend a legal system based on proximity, which in the big cities would be divided into districts and neighborhoods, and where a judge can resolve 50-60% of the minor conflicts that come up in day-to-day life, whether they be criminal, civil, labor, administrative, etc. In addition, there will be a mandate to develop laws that strictly regulate the principles of agility and speed, compatible with legal guarantees. Legal suits should last months, not years, no, months.

You also say there won’t be a Constitutional Court…
Yes, we are offering the idea that there be no Constitutional Court. That is, the republic must have a supreme court, with functions that unify doctrine and jurisprudence, but with civil, criminal, administrative, social and constitutional guarantees courtrooms. In this way, with a single stroke we solve the problem of politicizing the constitutional court of a state.

Who will form the court of constitutional guaranteees?
While the civil and criminal courts will be formed by five magistrates nominated on the basis of seniority and merit, the constitutional guarantees court will be different. Out of the five magistrates that comprise the court, only two, and thus a minority, will be career judges. The other three will be chosen through free elections: one by the citizens, the second by the ombudspeople, and the third by the law community: law professors, lawyers, solicitors, notary publics, registrars, etc. These people don’t necessarily have to be judges. The idea is to open it up to society and make this court be practically impossible to control. That is, it will be practically impossible for anyone to have a majority.

You also talk about setting term limits for the president and ministers…
Yes. There will be term limits for all high-level political positions, a maximum of two legislatures. High-level positions include: president, prime minister, ministers, president of the judiciary, and president of the parliament. Our understanding is that experience shows that the phenomenon of corruption and harmful inertia for a participatory democracy come from the fact that people hold on tightly to their political privileges.

Speaking of corruption, will there also be an organism for controlling public bids?
Yes, the idea is to revitalize and change the makeup of the Anti-Corruption Office, starting by giving it much more independence than it has now. Currently, the Anti-Corruption office is part of the Generalitat. And the idea is that it be a fully independent body.

Would it be filled by nominations from members of parliament?
No, not just that. It would have to be a technical office that doesn’t depend on either the Generalitat or the Parliament. The way its members would be nominated still needs to be worked out and it’s too soon to talk about, but the office would have to be completely independent of all the other powers of the state, with the specific function, via constitutional mandate, of supervising and controlling all public bids, party financing, etc.

Do you talk about official languages and education in the constitution?
We haven’t gotten there yet. Out of the 90 some articles that we’re planning, we’ve done around 61 or 62. Everything that has to do with culture, healthcare, and education are topics that we’ll get to from here on out. In some of those matters we have a very rough outline, but we still haven’t talked about them as a group, and so I can’t speak about them.

El Mundo published the information on Sunday. Have you gotten any pressure since it was revealed that you’re working on this draft?
No, the only requests we’ve had have been from media publications like yours. And we’re not expecting any. What law prohibits a group of experts from thinking about or working on whatever it wants? There is nothing illegal here and we judges that form part of the group are very clear about that. The fundamental law on judicial power outlines a strict framework of rules of incompatibility and clearly states that we are allowed to dedicate our free time to working on technical reports.

You say that you have edited sixty articles so far. What kind of schedule do you anticipate for this first draft of the constitution?
The idea is to not publish anything until the end of the year, after the referendum. And when we speak publicly again, it will be to present the final document, that we will offer to the whole community. So, for now, the schedule is once the referendum has taken place, we will show the society and its institutions this first draft of a constitution of the Catalan Republic so that whoever finds it useful can use it as an inspiration. It’s a way of getting work out of the way ahead of time.

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