Референдум в Каталонии: Прения сторон
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The United Kingdom Constitutional Law Association (UKCLA) is the UK’s national body of constitutional law scholars affiliated to the International Association of Constitutional Law. Its object is to ‘encourage and promote the advancement of knowledge relating to United Kingdom constitutional law (broadly defined) and the study of constitutions generally’.
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Information
This entry was posted on October 3, 2017 by Constitutional Law Group in Spain.
Editors’ note:
Today we publish two posts on the Catalan referendum held on 1 October. Elisenda Casanas Adam and Javier Garcia Oliva each offer differing perspectives on the process while engaging in a dialogue with one another. It is hoped that these posts will help explain to a UK audience the background to the referendum, the legal issues involved and ongoing matters of disagreement between the Spanish state and the Autonomous Community of Catalonia.
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https://ukconstitutionallaw.org/2017/10/03/elisenda-casanas-adam-the-referendum-on-catalonian-independence-the-position-of-the-catalan-authorities/
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Elisenda Casanas Adam: The Referendum on Catalonian Independence: The Position of the Catalan Authorities
From the perspective of UK constitutional lawyers, the conflict over Catalonia holding an independence referendum may be difficult to understand, as it stands in stark contrast with the negotiated process that followed the Edinburgh Agreement and led to the vote on Scottish independence in 2014. For many, this would seem the example to be followed in similar cases. However, in the Catalan case not only has such a process of negotiation and agreement been impossible, but the conflict has also escalated to such a level that it has resulted in the shocking images of state police brutality against ordinary Catalan citizens attempting to cast their vote that have been condemned across the world.
In order to understand the position of the Catalan authorities, two issues must be taken into account. The first is that the current party leading the Catalan Government and Parliament is the same party that was previously in government in Catalonia for 23 years (formerly Convergencia Democratica de Catalunya, since 2016, renamed Partit Demòcrata Europeu Català, PDEC), on many occasions, collaborating with the different parties in power at the state level. This highlights that there has been a significant breakdown in the functioning of the Spanish ‘State of the Autonomies’ as established in the Constitution of 1978, leading to change their position to support independence. Indeed, as Javier Garcia Oliva’s post highlights, the Constitution of 1978 provides for a flexible and open framework that recognises both ‘the indissoluble unity of the Spanish nation’ and ‘the right to autonomy of nationalities (included specifically as a reference to Spain’s minority nations) and regions’ (Art. 2 CE). These and other provisions were included to provide specific recognition for Spain’s historical nations (Catalonia, Basque Country and Galicia) and to enable them to attain a high level of self-government within the newly territoriality-decentralised state, reflecting an agreement that resolved one of the most challenging issues in the design of the new Constitution. However, there has been growing dissatisfaction in Catalonia in relation to how these provisions have been developed, interpreted and applied, resulting in both the blurring of the distinction between nationalities and regions, and a centralization of the distribution of competences. These and other aspects, such as composition of the Senate and the financing system, have led to ongoing debates on the need for a constitutional reform of the model, but the high constitutional thresholds required for this, and the lack of agreement from the two state-wide parties, made it an impossible feat.
The origins of the current pro-independence movement can be traced back to 2010, when an in depth reform of the Catalan Statute of Autonomy, used as a bottom-up alternative to address some of the above problems, was significantly read down by the Constitutional Court. This was particularly controversial as the Statute had been approved by both the Catalan and Spanish Parliaments, following the legally established procedure, and endorsed by the Catalan citizens in a referendum. The challenge to the Statute, brought by the party currently in government at the state level (Partido Popular), and the ruling of the Constitutional Court were seen as breaking the agreement established in the 1978 Constitution, and led to stronger claims in favour of Catalonia’s independence, and of the Catalan citizens’ right to decide their constitutional future. The ‘Right to Decide’ has become the term used to frame Catalonia’s claims to self-determination, and is based upon Catalonia’s status as a minority nation, and on the democratic principle contained in Art. 1 of the Constitution, which informs the interpretation of the rest of the constitutional text.
There are also other reasons that have further fuelled support for independence in Catalonia. Spain’s economic recession, highlighting the problems with the financing system, and the severe austerity measures adopted by the Spanish authorities have contributed significantly to the dissatisfaction of citizens with the overall constitutional framework. This is also reflected in the diversity of the current pro-independence coalition in the Catalan Government, which includes the nationalist centre-right PDEC and the nationalist centre-left party, Esquerra Republicana (ERC), and relies on the support of an anti-capitalist party in the Catalan Parliament, Candidatura d’Unitat Popular (CUP). These concerns have been clearly communicated to the Spanish authorities on various occasions. On 30 July 2015, the previous Catalan Prime Minister, Artur Mas, brought a list of 23 demands from Catalonia to the Spanish Prime Minister, Mariano Rajoy. The current Catalan Prime Minister, Carles Puigdemont, then increased this number to 46 in his first meeting with Mariano Rajoy on 20 April 2016. Despite this, the Spanish authorities have not seriously proposed any reforms to the Catalan settlement or the State of the Autonomies more generally, as an alternative to independence for those not satisfied with the current situation. The Constitutional Court itself has highlighted that this is a political conflict that requires a political solution and cannot be resolved by the Court alone.
A second issue to note is that the Catalan authorities’ unilateral referendum process is the outcome of numerous failed attempts to either reach an agreement with the Spanish authorities to enable them to hold an independence referendum in Catalonia, or to try and pursue any other potential legal avenues that would allow the Catalan institutions of self-government to consult their citizens on Catalonia’s constitutional future. Various academics and experts from within and outside Catalonia have pointed to at least five different ways in which the referendum (or a consultation) could be held in a way compatible with the Constitutional framework, leading arguments that the Spanish authorities’ opposition to the referendum is for political rather than strictly legal reasons. The Spanish Government’s consistent response has been to refuse to even engage with the possibility of holding the referendum, and to challenge any legal measures adopted by the Catalan Parliament with this objective before the Constitutional Court. As Garcia Oliva explains, a first attempt to hold the referendum ended up relegated to a citizen-led participation event held on the 9th November 2014, and even then, charges were brought against the Catalan President and members of his Government for their minimum involvement in organising the vote. As Garcia Oliva also highlights, the Constitutional Court has largely supported the state authorities’ interpretation of the relevant constitutional provisions in its various decisions on the issue, indicating that in order to change them the Catalan authorities would need to follow the established procedures for constitutional reform. From the perspective of the Catalan authorities, this put them in the impossible situation of having to persuade the two main state-wide parties to agree to the reforms in order to meet the required thresholds. It is also worth highlighting that on various occasions the Catalan authorities have tried to bring in the European Union institutions and representatives as mediators between themselves and the Spanish authorities, but with no success.
As a result of all the above, the Catalan Government called ‘plebiscitary elections’ on the 27th of September 2015, resulting in a majority in favour of independence in the Catalan Parliament, with 47.7% of the votes. On the 9th November 2015, the newly constituted Catalan Parliament adopted a resolution where it declared ‘The start of a process for the creation of an independent Catalan State in the form of a republic’, and called on the Catalan Government to start preparing the necessary measures to that end. It is as the culmination of this process that the Catalan Parliament adopted its ‘Referendum Act’, and its ‘Act of legal transition and of the formation of the republic’, to enter into force in the case of the victory of the ‘Yes’ vote, last month. It is true, as Garcia Oliva highlights, that there were significant anomalies in the enactment of these Acts. But in this case, as in the meeting of international and good practice standards for the holding of a referendum, the Catalan authorities were again placed in an impossible situation: In a context where any actions or measures were immediately challenged and, if possible, invalidated, securing the highest possible standards remained a priority but they also had to try and ensure that the legislation, and then the referendum, could effectively proceed.
In the end, because of the repressive measures adopted by the Spanish authorities, the vote became more an act of resistance and an assertion of a desire to be heard and recognised than a referendum as planned. It makes little sense to discuss the turnout (42%), or to compare it to other referendums, when there were riot police in the street violently seizing ballot boxes and preventing people from voting; but at the same time, the fact that 2.2 million people came out to vote in these conditions (90% in favour of independence) highlights the very high degree of citizen dissatisfaction with the Catalonia’s relationship with the rest of the state, which the Spanish authorities still do not seem to want to recognise. Two days after the event, the big question is, what happens next? The Catalan Prime Minister has announced that he will ask the Catalan Parliament to proceed with a unilateral declaration of independence, but precisely because of all the above, this will be very difficult to justify; however, this does not mean that the result is not significant. On the other hand, the Spanish authorities need to radically change their approach in dealing with the conflict and take Catalan concerns and demands seriously. A starting point would be to recognise that Spain is a plurinational state. The events of the 1st October will be very difficult to forget for many in Catalonia, even for those who do not support independence, and responsibility will have to be sought for the cases of documented police brutality. Moving on from there, clearly some form of dialogue is necessary between both governments, even if just to avoid more situations of violence as those observed on the day of the vote. Ideally, some form of more constructive dialogue is required in order to address the causes of the current conflict and to start a process that could lead to a solution that is satisfactory for all parties involved. This solution may ultimately have to be put to a referendum, so that the Catalan citizens can finally come out and vote on Catalonia’s constitutional future.
Dr Elisenda Casanas Adam, Lecturer in Public Law and Human Rights and Associate Director of the Edinburgh Centre for Constitutional Law, Edinburgh Law School.
(Suggested citation: E. Casanas Adam, ‘The Referendum on Catalonian Independence: The Position of the Catalan Authorities’, U.K. Const. L. Blog (3rd Oct. 2017) (available at https://ukconstitutionallaw.org/))
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https://ukconstitutionallaw.org/2017/10/03/javier-garcia-oliva-the-referendum-on-catalonian-independence-the-position-of-the-spanish-authorities/#comment-74119
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Javier Garcia Oliva: The Referendum on Catalonian Independence: The Position of the Spanish Authorities
Explaining the build-up to the current political maelstrom in Catalonia, which has followed the dramatic pro-independence referendum result on 1st October 2017, is no easy matter. The Government of Catalonia, la Generalitat, announced the results after midnight: 2.2 millions of citizens had voted, and 90% out of the participants did so in favour of breaking away from the rest of Spain. It cannot be denied, however, that the sample of voters would have been highly self-selecting.
It is difficult to shift for objective facts amongst the entrenched positions and clashing perceptions which have dominated the debates in the last few years, and the experience of referenda on independence in other contexts tells us that feelings are expected to keep running high. The emotionally charged language around the Scottish vote and its continuing aftermath in the UK, as well as the perennial question of an independent Quebec, are powerful evidence of this. Nevertheless, the unique dynamics around the legality of what is unfolding in Catalonia add an additional layer of complexity, as well as accusations and counteraccusations.
In previous a blog I set out some of the background to the debate. In short, the status of Catalonia as a nacionalidad means that it already enjoys the highest degree of regional autonomy provided for by the Spanish Constitution of 1978, and it derives its powers from that source. As a result, the rejection of the Constitution becomes hugely problematic if Catalonia wishes to retain its authority.
On 23rd January 2013 the Catalan Parliament resolved to hold a referendum on independence. As explained by Elisenda Casanas Adam, this followed the 2010 decision of the Spanish Constitutional Court, which had declared some of the provisions of the reformed main regional law of Catalonia, el estatuto de autonomía, unconstitutional. The 2013 declaration was categorised as unconstitutional by the Spanish Constitutional Court, and provisionally suspended in May 2013. There then followed some political sabre-rattling between regional and central authorities. On 25th March 2014, more than a year after the resolution of the regional Parliament, the Spanish Constitutional Court heard an appeal and affirmed that the declaration as it stood was unconstitutional, in essence because it asserted that Catalonian sovereignty existed. The Catalan authorities attempted to downgrade their referendum plan to a public consultation, but this was also declared unconstitutional by the Spanish Constitutional Court on 4th November 2014. In the end a public consultation took place, but was run by voluntary associations, rather than regional authorities. The result came out overwhelmingly in favour of independence, but that reveals little about the full picture at grassroots level. The turnout was around 35%, which compares with 84.6% for the Scottish vote, and participation was self-selecting, as citizens supportive of the independence movement were more likely to engage with a process of dubious legitimacy. Whilst the local judiciary did not oppose it, and the authorities in Madrid chose not to actively take steps against it, neither reality amounted to a ringing endorsement of legality.
Since that time, the situation has continued to fester, culminating in the current crisis. The fuse for what is now exploding was lit in June this year, when Carles Puigdemont, the Catalan regional president announced his intention to hold a referendum on 1stOctober. Obtaining backing from the regional Parliament was not an easy process, and legislation was only passed after an 11 hour debate during which 52 opposition members left the chamber. The minority politicians accused majority pro-independence lobby of manipulating legal deadlines and parliamentary procedure. This element has been downplayed in much of the English speaking media, but it is, in our view, key. An appeal to democratic values is at the heart of the governing Catalan authorities’ case. Therefore, this has an impact on their credibility.
Predictably, the central authorities opposed this development, and the Constitutional Court acted rapidly to suspend the legislation. It should be noted that the Catalan law is now arguably in limbo, rather than ‘struck down’, and the Court will further consider its legal status at a full hearing. Once again, much turned on the sovereignty question, and the Court stressed its apolitical nature as well as its duty to apply the Spanish Constitution. It reiterated that it is unquestionable that sovereignty resides with the whole Spanish people, and any attempts to locate alternative sources of sovereignty (i.e. in the people of Catalonia) must be regarded as unconstitutional. Pursuing constitutional reform would be licit, but only via the existing framework set out in Art 168 of the Spanish Constitution. According to this provision, responsibility for referenda lies exclusively with state authorities, constitutional consultations must involve all Spanish citizens, and it is not open to sub-state entities to create parallel consultative mechanisms. Neither it is possible, as the regional authorities tried to suggest, to make contingent provision for a future constitutional order. The Constitutional Court accepted that public authorities were free to enter into dialogue towards alteration of their legal status, and resisted the idea that such action was automatically an unconstitutional attempt to undermine the existing legal order, but in the view of this judicial body, political negotiation towards reform was the appropriate channel.
However, as Casanas Adam highlights in her blog, the Catalan authorities have struggled to see how negotiation is possible if state powers refuse to talk. After the judgement, they continued to insist that holding a referendum was not a criminal act, but their only means of providing their electors with the opportunity for effective self-determination, due to the unwillingness of Madrid to facilitate a vote or enter into dialogue. In the view of the Catalan authorities, any shortcomings in the process were the result of the inflexible stance taken by the Spanish Prime Minister and his government. With national police despatched to physically stop the referendum from taking place, and the real threat of arrest hovering over some Catalan politicians, accusations of high-handedness are not surprising. Some of the scenes reported by both domestic and international media are undoubtedly a cause of concern, and whether they were a proportionate response to the event may need to be decided by the courts in due course However, it should not be underestimated that unfortunately, the response of the Catalan police, Mossos D’Esquadra, had not been sufficiently robust, and may explain the higher involvement of the national Spanish police. This does not amount, needless to say, to any justification of possible excesses of the latter, which may be reviewed by judges in due course. However, in inciting citizens to participate in an illegal event, which they were well aware the national Government would oppose with force if necessary, the Catalan authorities must bear heavy responsibility for the injury and chaos which ensued.
Furthermore, whilst the frustration of the Catalan authorities at years of stalling was understandable, the flaws with the intended referendum cannot be swept under the carpet. From the point of view of a proper democratic process, it is irrelevant where the blame may lie, and the result cannot be construed, in any way, as a valid or a genuine expression of collective will. Voting locations and ballot boxes still remained secret only days before polling, and this was in itself indefensible. The ordinary administrative and practical safeguards against matters as basic as multiple votes and tampering with the boxes were impossible to guarantee, and that was before the lack of space and opportunity for any anti-secessionist campaign were factored in, let alone the non-participation by angry pro-remainers.
With an appeal for self-determination at the heart of the Catalan authorities’ case, this lack of a proper process is self-defeating. Because citizens have not had the chance to take part in a full and open debate, or vote in the secure knowledge that there were rigorous protections in place against any wrongdoing on the part of those administering the process, no outcome can victory for democracy or self-determination. Any purported mandate for independence now claimed by Carles Puidgemont lacks legitimacy, and if acted upon those who find themselves in the minority will be left with the sense that their rights have been trampled upon. In contrast, a properly administered pro-independence vote could have had a very different legacy.
Furthermore, the suspended law would have allowed a bare minority to trigger independence. Codified Constitutions all over the world, including the Spanish one, have provisions in place to prevent easy or marginally approved constitutional changes. Short term political frustrations or interests are not generally allowed to have such dramatic and permanent impact, and unfortunately post-Brexit Britain is an example of a society bitterly divided by such a vote. The accusations of too many pro-Brexit votes being protest votes or misinformed are still rife, and if nothing else, the UK should show the rest of Europe the importance of thorough and informed debates, which would be then followed by destiny-changing votes carried out only with due safeguards and constraints. Spain desperately needs such a process in relation to Catalonia, but at present neither the sub-state nor state authorities are making it happen. As rightly suggested by Casanas Adam, a meaningful and constructive dialogue is absolutely essential. Both national and regional authorities must adopt a very different approach if a positive solution is ever to be reached.
Dr Javier García Oliva, Senior Lecturer in Law, The University of Manchester
(Suggested citation: J. Garcia Oliva, ‘The Referendum on Catalonian Independence: The Position of the Spanish Authorities’, U.K. Const. L. Blog (3rd Oct. 2017) (available at https://ukconstitutionallaw.org/))
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Испанские оккупанты, вон с каталонской земли!
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The United Kingdom Constitutional Law Association (UKCLA) is the UK’s national body of constitutional law scholars affiliated to the International Association of Constitutional Law. Its object is to ‘encourage and promote the advancement of knowledge relating to United Kingdom constitutional law (broadly defined) and the study of constitutions generally’.
.
.
Information
This entry was posted on October 3, 2017 by Constitutional Law Group in Spain.
Editors’ note:
Today we publish two posts on the Catalan referendum held on 1 October. Elisenda Casanas Adam and Javier Garcia Oliva each offer differing perspectives on the process while engaging in a dialogue with one another. It is hoped that these posts will help explain to a UK audience the background to the referendum, the legal issues involved and ongoing matters of disagreement between the Spanish state and the Autonomous Community of Catalonia.
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https://ukconstitutionallaw.org/2017/10/03/elisenda-casanas-adam-the-referendum-on-catalonian-independence-the-position-of-the-catalan-authorities/
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Elisenda Casanas Adam: The Referendum on Catalonian Independence: The Position of the Catalan Authorities
From the perspective of UK constitutional lawyers, the conflict over Catalonia holding an independence referendum may be difficult to understand, as it stands in stark contrast with the negotiated process that followed the Edinburgh Agreement and led to the vote on Scottish independence in 2014. For many, this would seem the example to be followed in similar cases. However, in the Catalan case not only has such a process of negotiation and agreement been impossible, but the conflict has also escalated to such a level that it has resulted in the shocking images of state police brutality against ordinary Catalan citizens attempting to cast their vote that have been condemned across the world.
In order to understand the position of the Catalan authorities, two issues must be taken into account. The first is that the current party leading the Catalan Government and Parliament is the same party that was previously in government in Catalonia for 23 years (formerly Convergencia Democratica de Catalunya, since 2016, renamed Partit Demòcrata Europeu Català, PDEC), on many occasions, collaborating with the different parties in power at the state level. This highlights that there has been a significant breakdown in the functioning of the Spanish ‘State of the Autonomies’ as established in the Constitution of 1978, leading to change their position to support independence. Indeed, as Javier Garcia Oliva’s post highlights, the Constitution of 1978 provides for a flexible and open framework that recognises both ‘the indissoluble unity of the Spanish nation’ and ‘the right to autonomy of nationalities (included specifically as a reference to Spain’s minority nations) and regions’ (Art. 2 CE). These and other provisions were included to provide specific recognition for Spain’s historical nations (Catalonia, Basque Country and Galicia) and to enable them to attain a high level of self-government within the newly territoriality-decentralised state, reflecting an agreement that resolved one of the most challenging issues in the design of the new Constitution. However, there has been growing dissatisfaction in Catalonia in relation to how these provisions have been developed, interpreted and applied, resulting in both the blurring of the distinction between nationalities and regions, and a centralization of the distribution of competences. These and other aspects, such as composition of the Senate and the financing system, have led to ongoing debates on the need for a constitutional reform of the model, but the high constitutional thresholds required for this, and the lack of agreement from the two state-wide parties, made it an impossible feat.
The origins of the current pro-independence movement can be traced back to 2010, when an in depth reform of the Catalan Statute of Autonomy, used as a bottom-up alternative to address some of the above problems, was significantly read down by the Constitutional Court. This was particularly controversial as the Statute had been approved by both the Catalan and Spanish Parliaments, following the legally established procedure, and endorsed by the Catalan citizens in a referendum. The challenge to the Statute, brought by the party currently in government at the state level (Partido Popular), and the ruling of the Constitutional Court were seen as breaking the agreement established in the 1978 Constitution, and led to stronger claims in favour of Catalonia’s independence, and of the Catalan citizens’ right to decide their constitutional future. The ‘Right to Decide’ has become the term used to frame Catalonia’s claims to self-determination, and is based upon Catalonia’s status as a minority nation, and on the democratic principle contained in Art. 1 of the Constitution, which informs the interpretation of the rest of the constitutional text.
There are also other reasons that have further fuelled support for independence in Catalonia. Spain’s economic recession, highlighting the problems with the financing system, and the severe austerity measures adopted by the Spanish authorities have contributed significantly to the dissatisfaction of citizens with the overall constitutional framework. This is also reflected in the diversity of the current pro-independence coalition in the Catalan Government, which includes the nationalist centre-right PDEC and the nationalist centre-left party, Esquerra Republicana (ERC), and relies on the support of an anti-capitalist party in the Catalan Parliament, Candidatura d’Unitat Popular (CUP). These concerns have been clearly communicated to the Spanish authorities on various occasions. On 30 July 2015, the previous Catalan Prime Minister, Artur Mas, brought a list of 23 demands from Catalonia to the Spanish Prime Minister, Mariano Rajoy. The current Catalan Prime Minister, Carles Puigdemont, then increased this number to 46 in his first meeting with Mariano Rajoy on 20 April 2016. Despite this, the Spanish authorities have not seriously proposed any reforms to the Catalan settlement or the State of the Autonomies more generally, as an alternative to independence for those not satisfied with the current situation. The Constitutional Court itself has highlighted that this is a political conflict that requires a political solution and cannot be resolved by the Court alone.
A second issue to note is that the Catalan authorities’ unilateral referendum process is the outcome of numerous failed attempts to either reach an agreement with the Spanish authorities to enable them to hold an independence referendum in Catalonia, or to try and pursue any other potential legal avenues that would allow the Catalan institutions of self-government to consult their citizens on Catalonia’s constitutional future. Various academics and experts from within and outside Catalonia have pointed to at least five different ways in which the referendum (or a consultation) could be held in a way compatible with the Constitutional framework, leading arguments that the Spanish authorities’ opposition to the referendum is for political rather than strictly legal reasons. The Spanish Government’s consistent response has been to refuse to even engage with the possibility of holding the referendum, and to challenge any legal measures adopted by the Catalan Parliament with this objective before the Constitutional Court. As Garcia Oliva explains, a first attempt to hold the referendum ended up relegated to a citizen-led participation event held on the 9th November 2014, and even then, charges were brought against the Catalan President and members of his Government for their minimum involvement in organising the vote. As Garcia Oliva also highlights, the Constitutional Court has largely supported the state authorities’ interpretation of the relevant constitutional provisions in its various decisions on the issue, indicating that in order to change them the Catalan authorities would need to follow the established procedures for constitutional reform. From the perspective of the Catalan authorities, this put them in the impossible situation of having to persuade the two main state-wide parties to agree to the reforms in order to meet the required thresholds. It is also worth highlighting that on various occasions the Catalan authorities have tried to bring in the European Union institutions and representatives as mediators between themselves and the Spanish authorities, but with no success.
As a result of all the above, the Catalan Government called ‘plebiscitary elections’ on the 27th of September 2015, resulting in a majority in favour of independence in the Catalan Parliament, with 47.7% of the votes. On the 9th November 2015, the newly constituted Catalan Parliament adopted a resolution where it declared ‘The start of a process for the creation of an independent Catalan State in the form of a republic’, and called on the Catalan Government to start preparing the necessary measures to that end. It is as the culmination of this process that the Catalan Parliament adopted its ‘Referendum Act’, and its ‘Act of legal transition and of the formation of the republic’, to enter into force in the case of the victory of the ‘Yes’ vote, last month. It is true, as Garcia Oliva highlights, that there were significant anomalies in the enactment of these Acts. But in this case, as in the meeting of international and good practice standards for the holding of a referendum, the Catalan authorities were again placed in an impossible situation: In a context where any actions or measures were immediately challenged and, if possible, invalidated, securing the highest possible standards remained a priority but they also had to try and ensure that the legislation, and then the referendum, could effectively proceed.
In the end, because of the repressive measures adopted by the Spanish authorities, the vote became more an act of resistance and an assertion of a desire to be heard and recognised than a referendum as planned. It makes little sense to discuss the turnout (42%), or to compare it to other referendums, when there were riot police in the street violently seizing ballot boxes and preventing people from voting; but at the same time, the fact that 2.2 million people came out to vote in these conditions (90% in favour of independence) highlights the very high degree of citizen dissatisfaction with the Catalonia’s relationship with the rest of the state, which the Spanish authorities still do not seem to want to recognise. Two days after the event, the big question is, what happens next? The Catalan Prime Minister has announced that he will ask the Catalan Parliament to proceed with a unilateral declaration of independence, but precisely because of all the above, this will be very difficult to justify; however, this does not mean that the result is not significant. On the other hand, the Spanish authorities need to radically change their approach in dealing with the conflict and take Catalan concerns and demands seriously. A starting point would be to recognise that Spain is a plurinational state. The events of the 1st October will be very difficult to forget for many in Catalonia, even for those who do not support independence, and responsibility will have to be sought for the cases of documented police brutality. Moving on from there, clearly some form of dialogue is necessary between both governments, even if just to avoid more situations of violence as those observed on the day of the vote. Ideally, some form of more constructive dialogue is required in order to address the causes of the current conflict and to start a process that could lead to a solution that is satisfactory for all parties involved. This solution may ultimately have to be put to a referendum, so that the Catalan citizens can finally come out and vote on Catalonia’s constitutional future.
Dr Elisenda Casanas Adam, Lecturer in Public Law and Human Rights and Associate Director of the Edinburgh Centre for Constitutional Law, Edinburgh Law School.
(Suggested citation: E. Casanas Adam, ‘The Referendum on Catalonian Independence: The Position of the Catalan Authorities’, U.K. Const. L. Blog (3rd Oct. 2017) (available at https://ukconstitutionallaw.org/))
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Javier Garcia Oliva: The Referendum on Catalonian Independence: The Position of the Spanish Authorities
Explaining the build-up to the current political maelstrom in Catalonia, which has followed the dramatic pro-independence referendum result on 1st October 2017, is no easy matter. The Government of Catalonia, la Generalitat, announced the results after midnight: 2.2 millions of citizens had voted, and 90% out of the participants did so in favour of breaking away from the rest of Spain. It cannot be denied, however, that the sample of voters would have been highly self-selecting.
It is difficult to shift for objective facts amongst the entrenched positions and clashing perceptions which have dominated the debates in the last few years, and the experience of referenda on independence in other contexts tells us that feelings are expected to keep running high. The emotionally charged language around the Scottish vote and its continuing aftermath in the UK, as well as the perennial question of an independent Quebec, are powerful evidence of this. Nevertheless, the unique dynamics around the legality of what is unfolding in Catalonia add an additional layer of complexity, as well as accusations and counteraccusations.
In previous a blog I set out some of the background to the debate. In short, the status of Catalonia as a nacionalidad means that it already enjoys the highest degree of regional autonomy provided for by the Spanish Constitution of 1978, and it derives its powers from that source. As a result, the rejection of the Constitution becomes hugely problematic if Catalonia wishes to retain its authority.
On 23rd January 2013 the Catalan Parliament resolved to hold a referendum on independence. As explained by Elisenda Casanas Adam, this followed the 2010 decision of the Spanish Constitutional Court, which had declared some of the provisions of the reformed main regional law of Catalonia, el estatuto de autonomía, unconstitutional. The 2013 declaration was categorised as unconstitutional by the Spanish Constitutional Court, and provisionally suspended in May 2013. There then followed some political sabre-rattling between regional and central authorities. On 25th March 2014, more than a year after the resolution of the regional Parliament, the Spanish Constitutional Court heard an appeal and affirmed that the declaration as it stood was unconstitutional, in essence because it asserted that Catalonian sovereignty existed. The Catalan authorities attempted to downgrade their referendum plan to a public consultation, but this was also declared unconstitutional by the Spanish Constitutional Court on 4th November 2014. In the end a public consultation took place, but was run by voluntary associations, rather than regional authorities. The result came out overwhelmingly in favour of independence, but that reveals little about the full picture at grassroots level. The turnout was around 35%, which compares with 84.6% for the Scottish vote, and participation was self-selecting, as citizens supportive of the independence movement were more likely to engage with a process of dubious legitimacy. Whilst the local judiciary did not oppose it, and the authorities in Madrid chose not to actively take steps against it, neither reality amounted to a ringing endorsement of legality.
Since that time, the situation has continued to fester, culminating in the current crisis. The fuse for what is now exploding was lit in June this year, when Carles Puigdemont, the Catalan regional president announced his intention to hold a referendum on 1stOctober. Obtaining backing from the regional Parliament was not an easy process, and legislation was only passed after an 11 hour debate during which 52 opposition members left the chamber. The minority politicians accused majority pro-independence lobby of manipulating legal deadlines and parliamentary procedure. This element has been downplayed in much of the English speaking media, but it is, in our view, key. An appeal to democratic values is at the heart of the governing Catalan authorities’ case. Therefore, this has an impact on their credibility.
Predictably, the central authorities opposed this development, and the Constitutional Court acted rapidly to suspend the legislation. It should be noted that the Catalan law is now arguably in limbo, rather than ‘struck down’, and the Court will further consider its legal status at a full hearing. Once again, much turned on the sovereignty question, and the Court stressed its apolitical nature as well as its duty to apply the Spanish Constitution. It reiterated that it is unquestionable that sovereignty resides with the whole Spanish people, and any attempts to locate alternative sources of sovereignty (i.e. in the people of Catalonia) must be regarded as unconstitutional. Pursuing constitutional reform would be licit, but only via the existing framework set out in Art 168 of the Spanish Constitution. According to this provision, responsibility for referenda lies exclusively with state authorities, constitutional consultations must involve all Spanish citizens, and it is not open to sub-state entities to create parallel consultative mechanisms. Neither it is possible, as the regional authorities tried to suggest, to make contingent provision for a future constitutional order. The Constitutional Court accepted that public authorities were free to enter into dialogue towards alteration of their legal status, and resisted the idea that such action was automatically an unconstitutional attempt to undermine the existing legal order, but in the view of this judicial body, political negotiation towards reform was the appropriate channel.
However, as Casanas Adam highlights in her blog, the Catalan authorities have struggled to see how negotiation is possible if state powers refuse to talk. After the judgement, they continued to insist that holding a referendum was not a criminal act, but their only means of providing their electors with the opportunity for effective self-determination, due to the unwillingness of Madrid to facilitate a vote or enter into dialogue. In the view of the Catalan authorities, any shortcomings in the process were the result of the inflexible stance taken by the Spanish Prime Minister and his government. With national police despatched to physically stop the referendum from taking place, and the real threat of arrest hovering over some Catalan politicians, accusations of high-handedness are not surprising. Some of the scenes reported by both domestic and international media are undoubtedly a cause of concern, and whether they were a proportionate response to the event may need to be decided by the courts in due course However, it should not be underestimated that unfortunately, the response of the Catalan police, Mossos D’Esquadra, had not been sufficiently robust, and may explain the higher involvement of the national Spanish police. This does not amount, needless to say, to any justification of possible excesses of the latter, which may be reviewed by judges in due course. However, in inciting citizens to participate in an illegal event, which they were well aware the national Government would oppose with force if necessary, the Catalan authorities must bear heavy responsibility for the injury and chaos which ensued.
Furthermore, whilst the frustration of the Catalan authorities at years of stalling was understandable, the flaws with the intended referendum cannot be swept under the carpet. From the point of view of a proper democratic process, it is irrelevant where the blame may lie, and the result cannot be construed, in any way, as a valid or a genuine expression of collective will. Voting locations and ballot boxes still remained secret only days before polling, and this was in itself indefensible. The ordinary administrative and practical safeguards against matters as basic as multiple votes and tampering with the boxes were impossible to guarantee, and that was before the lack of space and opportunity for any anti-secessionist campaign were factored in, let alone the non-participation by angry pro-remainers.
With an appeal for self-determination at the heart of the Catalan authorities’ case, this lack of a proper process is self-defeating. Because citizens have not had the chance to take part in a full and open debate, or vote in the secure knowledge that there were rigorous protections in place against any wrongdoing on the part of those administering the process, no outcome can victory for democracy or self-determination. Any purported mandate for independence now claimed by Carles Puidgemont lacks legitimacy, and if acted upon those who find themselves in the minority will be left with the sense that their rights have been trampled upon. In contrast, a properly administered pro-independence vote could have had a very different legacy.
Furthermore, the suspended law would have allowed a bare minority to trigger independence. Codified Constitutions all over the world, including the Spanish one, have provisions in place to prevent easy or marginally approved constitutional changes. Short term political frustrations or interests are not generally allowed to have such dramatic and permanent impact, and unfortunately post-Brexit Britain is an example of a society bitterly divided by such a vote. The accusations of too many pro-Brexit votes being protest votes or misinformed are still rife, and if nothing else, the UK should show the rest of Europe the importance of thorough and informed debates, which would be then followed by destiny-changing votes carried out only with due safeguards and constraints. Spain desperately needs such a process in relation to Catalonia, but at present neither the sub-state nor state authorities are making it happen. As rightly suggested by Casanas Adam, a meaningful and constructive dialogue is absolutely essential. Both national and regional authorities must adopt a very different approach if a positive solution is ever to be reached.
Dr Javier García Oliva, Senior Lecturer in Law, The University of Manchester
(Suggested citation: J. Garcia Oliva, ‘The Referendum on Catalonian Independence: The Position of the Spanish Authorities’, U.K. Const. L. Blog (3rd Oct. 2017) (available at https://ukconstitutionallaw.org/))
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