Jaume Pi,
Barcelona
Two out of the five
magistrates who have decided the appeals of Mas, Ortega and Rigau will be
members of the tribunal to judge the pro-independence leaders in the ‘procés’
case.
The sentence issued by the Supreme Court solving the appeals of Artur Mas, Joana Ortega and Irene
Rigau against the ruling of the TSJCat
in the case of the 9-N launches a relevant warning as regards the trial of the ‘procés’ to start at the beginning of
February precisely in the premises of the Supreme Court. Against the arguments
of Mas and the other two ex-councillors claiming infringement of the right to
ideological freedom, of expression and participation in the public sphere, the
Supreme Court is absolutely clear: “There is no right to participate in a voting
which has been declared time and again illegal by the institution in charge of
the interpretation and guarantee of fundamentals rights”.
This sentence was
made publicly available on Dec., the 17th. and the
Court reduces the punishment of disqualification for Mas from two years to one
year plus one month, while there is also a reduction in the other cases. This
last Wednesday the TSJCat has disseminated the sentence in full; in spite of
reductions, the magistrates reject most of the arguments brought forward by the
Catalan ex-president.
The Supreme Court brands as
“myopic or hemiplegic” just arguing violation of fundamental rights because “it
disregards the ostracism to which are condemned all those citizens who did not
give their opinion by voting due to their confidence in the illegality of the
plebiscite”.
The sentence clearly states that it is legal nonsense claiming violation of
fundamental rights, as indeed Mas, Ortega and Rigau do. In addition, it brands
as “myopic or hemiplegic” this argument, because “it disregards the ostracism
to which are condemned all those citizens who did not give their opinion by
voting due to their confidence in the illegality of the plebiscite and the
protection of the well publicised decision of the Constitutional Court
suspending it”.
The magistrates further remind that the participatory process of 9-N was
declared contrary to the Constitution by the Constitutional Court and that,
therefore, there isn’t a right to vote in a plebiscite “called outside the
law”. According to the court, the “practice of fundamental rights is to be done
following established limits and tracks”, so that “if the pertinent authority
suspends such a voting”, disregarding the suspension “will be disobedience”
even if this “implies the cancellation of a possibility open to the citizens to
intervene in matters of public interest”.
The ruling doesn’t accept as well the distinction made by the appellants
between the calling for a voting initially approved and the one implemented in
the end on the 9-N (it can be remembered that after the sentence of the
Constitutional Court Mas and his government substituted the initial referendum
with a “participatory process” in which among other things there was no
electoral roll nor electoral administration). These distinctions “do not affect
the background issue”, affirms the Supreme Court while reminding that the
Constitutional Court accepted their existence but denying them any kind of
relevance when it comes to the decision about the constitutionality.
The Supreme Court goes a little bit further and considers as “a desirable
preventive effect” the fact that the sentence would cause that “those who are
established as authorities would refrain from persisting in an illegal action”;
and rejects, to the contrary, -while branding it as “bizarre” – that this could
discourage the citizens from political participation, as was indeed claimed in
their appeals. In this respect, the ruling concludes that the action of the
defendants “damaged a legal good”, that is, “the value of the decisions by the
judiciary power and the separation of powers”, and stands up for a response
within the criminal code sphere.
Of course, there are distances to be crossed between the case of 9-N and
the one just about to be judged. Mas, Ortega and Rigau were condemned by the TSJCat
in March 2017 to punishments of disqualification on account of an alleged crime
of disobedience, while the public prosecutors are asking for a prison sentence
of between 16 and 25 years on account of the crimes of rebellion, sedition and
misappropriation. However, the ruling is of interest due to the fact that two
magistrates involved in its deliberation, Luciano Varela and Antonio del Moral,
will be sitting in the court to judge Oriol Junqueras and the rest of defendants.
https://www.lavanguardia.com/politica/20190123/454272962856/supremo-avisa-fallo-9n-no-existe-derecho-participar-consulta-margen-ley.html
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