The PSOE will seek in the coming weeks the necessary support to achieve the investiture of Pedro Sánchez, and the parties that have the key (24 votes) for that investiture to prosper are all independentists: PNV, EH Bildu, ERC and Junts per Catalunya. The negotiating process is beginning and the demands of the Catalan secessionist parties – the right of self-determination and amnesty for the defendants of the procés – has now been joined by the proposal to reform the territorial model proposed by the lehendakari Iñigo Urkullu, of the PNV. His plan is to propose to the State a pact to "reinterpret" the Constitution without the need to reform it and so that Spain advances towards a "plurinational" State in which the "historical communities" have "agreed decision-making capacity", a euphemism for the right of self-determination. The Socialists consider that the proposal of the lehendakari is legitimate and are willing to dialogue about it, although they emphasize that they do not share it and that the limits of the negotiation are marked by the Constitution.
The Constitutional Court has established, through a dozen judgments issued in the last 15 years, the limits established by the Fundamental Law with respect to this ancient claim of the nationalists both in the Basque Country and in Catalonia: their own sovereignty.
The Constitution recognizes only one holder of sovereignty: the whole of the Spanish people. And the Constitutional Court has relied on that maxim to annul successive decisions of the Basque and Catalan governments aimed at promoting independence processes in their territories. In 2008, the Constitutional Court prevented the lehendakari Juan José Ibarretxe from convening a sovereigntist consultation in the Basque Country; in 2014, it annulled the resolution of the Parliament that in 2013 had declared Catalonia a "sovereign political and legal subject"; In 2015, it cancelled the consultation of 9 November 2014 (although it was held). And in December of that same year 2015 he also declared null the resolution with which, a month earlier, the Parliament had given the green light to the break with the rest of Spain. These sentences were followed by the cascade of resolutions to put a stop to the final stretch of the procés. The conclusions of the court have always been two: that a part of Spain cannot decide for the whole; and that the collective rules of the game can be changed – with a reform of the Constitution – but not ignored.
In 2017, in the ruling that annulled the referendum law of the Parliament, the Constitutional Court declared: "For none of the peoples of Spain there is a right of self-determination, understood as the right to promote and consummate their unilateral secession from the State in which Spain is constituted. Such a right, with all evidence, is not recognized in the Constitution." The ruling cited a dozen previous rulings issued since 2008. These are their main arguments:
A consultation is only possible with the participation "of the entire Spanish electoral body". "A referendum has therefore been called without seeking the required authorization from the State," the court said. But it is also that, he remarked, "this specific type of consultation is not provided for either in the Constitution or in the organic law to which Article 92.3 of the Constitution refers." "To this must be added, with much greater significance, that the consultation on the "self-determination" of Catalonia would have to fully affect the aforementioned identity and unity of the subject holder of sovereignty and that therefore, according to our jurisprudence, it could not be the subject of another type of referendum than the one planned, with the participation of the entire Spanish electoral body, in article 168.3 of the Constitution".
A law against constitutional principles. "The law of the referendum of self-determination is, with all evidence, unconstitutional and it is so as a whole by contradicting, in an explicit way, essential principles of our constitutional order: national sovereignty, residing in the Spanish people, the very unity of the Nation constituted in a social and democratic State of law, and the supremacy of the Constitution itself."
The people of Catalonia do not hold sovereign power. "Neither the people of Catalonia are the holders of a sovereign power, exclusive of the Spanish Nation constituted as a State, nor can, therefore, be identified as a legal subject that enters into competition with the holder of national sovereignty; nor can the citizens of Catalonia be confused with the sovereign people conceived as the ideal unit of imputation of constituent power and as such source of the Constitution and Ordering.
Spaniards are the only ones who can be called upon to decide. "The referendum of binding self-determination that Law 19/2017 [that of the independence referendum] regulates and convenes is as consistent with the unconstitutional premise of the sovereignty of the people of Catalonia from which it starts, as irreconcilable with the unity of the Spanish Nation on which the Constitution is based," the sentence continued. "Even if the vote had not implied the independence of Catalonia, that unity of the Nation, and that of the State in which it is constituted, would have been irremissibly canceled. The Nation on whose unity the Constitution is based is that of all Spaniards, as free citizens and equal in rights. They are the only ones who, hypothetically, could be called upon to decide on the permanence and destiny of the common State (Article 168 of the Constitution) without the constituent power of which they are sole holders continuing to deserve that name in the event that such a decision was attributed to only a fraction of the Spanish people.
What affects everyone must be decided by everyone. "What affects everyone, that is, the permanence or not of that common State in which Spain was constituted, could not, if necessary, but be reconsidered and decided also by all; the opposite would entail, with the rupture of the unity of citizenship, the bankruptcy, in juridical-constitutional terms, of the Nation of all."
An autonomous Parliament located outside the law. "The Parliament of Catalonia has sought, through Law 19/2017, to cancel in fact, in the territory of Catalonia and for all the Catalan people, the validity of the Constitution, the Statute of Autonomy and any rules of law that do not agree or accommodate the dictates of its naked will. Nothing else supposes the apodictic affirmation both of his condition as representative of a "sovereignty" nonexistent in law, and of the hierarchical supremacy of norms dictated with no other basis than that of his arbitration. The Chamber, by acting in this way, has placed itself completely outside the law, has entered into an unacceptable path of fact, has declared ceased to act in the exercise of its own constitutional and statutory functions and has put at maximum risk, for all the citizens of Catalonia, the validity and effectiveness of all the guarantees and rights preserved for them both the Constitution and the Statute itself.
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