"The political decision adopted on the mode and form of state existence, which integrates the substance of the Constitution, is valid, because the political unit whose constitution is in question exists, and the subject of the constituent Power can fix the mode and form of that existence... The legitimacy of a Constitution does not mean that it has been processed according to previously existing constitutional laws. Such an idea would be especially absurd."
Carl Smith (Theory of the Constitution)
Puigdemont did not betray the people of Catalonia yesterday, in whose name he speaks and decides and whose sovereign authority is fully attributed to the Catalan constituents. Because that is what it is about.
When, yesterday, the President of the Government finished his speech, he had used the cuckoo tactic: singing in one place (the Plenary of Parliament) and laying the egg in another (the Declaration of Independence, signed moments later by the new Constituent Power).
Puigdemont did not allude at any time --and thus subtracted it from the parliamentary debate-- to the Declaration that they were going to sign once the session was adjourned. And that was when they laid the egg.
The Declaration is conclusive: "We constitute the Catalan Republic." We order the entry into force of the foundational Law of the Republic. We initiate the constituent process. We affirm the will to open negotiations with the Spanish State... aimed at establishing a regime of collaboration for the benefit of both parties." And it perfectly clarifies the scope of the dialogue, whose solemn offer dazzled almost all the analysts I listened to last night. Until I turned off the light.
The spokesman for Junts per el Sí, when explaining the validity of the referendum and its results, did not use a single legal argument, nor a single reference to the order established by the Constitution of 1978. Only political arguments.
He added in this way to Puigdemont's statement: the Constitution of 1978 is a framework, but "there is democracy beyond the Constitution." A democracy whose rules are set at will by the representatives (only them, because only they represent it) of the old/new sovereign political unit: Catalonia.
To start speculating about whether Puigdemont declared independence in his speech or not is to get lost behind the cuckoo's song. To Miquel Iceta's argument (you cannot suspend what has not been declared) it can be opposed on the fly that what has been declared is suspended, that it is suspended (precisely) because it has been previously declared. But all that is to be guided by the song, to run after the hare.
The key is the Declaration. And its political and legal validity, for the Catalan constituents, does not depend on the Spanish Constitution. Measuring the legality of a new Constituent Power and a new Constitution with the precepts of its predecessor is "hammering on cold iron", reinforced Carl Smith quoting W. Burckhart.
The entire succession of acts of the procés has been, from the first moment, a violation of the Spanish Constitution (the chains that must be freed, according to Anna Gabriel) that was not approved as "a starting point" to get to where Puigdemont believes he is getting, but regulates a way of coexistence between the people and the peoples of Spain with a vocation of durability. And some procedures for its reform.
What is happening is the closest thing to a classic-type revolution that one can imagine in a Spain like the one of now. A century after the Russian Revolution.
The legal norms, also the fundamental ones contained in a Constitution, are thought and written on the assumption that they are going to be obeyed, applied reasonably and with elementary good faith. They cannot foresee the inexhaustible range of tricks and maneuvers that can be devised to disobey them. Especially when that disobedience comes from public powers such as the Generalitat, which have more than enough advice to perpetrate a legal fraud and an uprising against the Constitution.
Therefore, only and everything that is happening is legitimate for those who feel they are bearers of a new constituent power. As legitimate for them as unacceptable for the Catalans and Spaniards who support the constitutional democracy founded in 1978.
Santiago Pérez, Constitutional Law ULL, October 11, 2017
