Pablo Faucon Diaz offers us insight into the Catalonian Referendum from a legal perspective
In 1978, the Spanish Government of Adolfo Suarez called for a referendum to approve a constitution after nearly 40 years of dictatorship. The constitution established it would be “based on the indissoluble unity of the Spanish nation”, with approximately 87% of the Spanish people including almost 91% of Catalans voting in favour of it. One year later, in 1979, the Statute of Autonomy of Catalonia was approved, which further allowed Catalonia to have its own government called the Generalitat. In 2006, the 1979 Statute was then replaced by a new one giving even more power to the region, which included making Catalonian into an official language alongside Spanish, as well as conferring exclusive and shared jurisdictions to the local Government. Among the autonomous regions in Spain, Catalonia has remained one of the most powerful along with the Basque Country. That is, until now.
Last month, on September 6th, the Catalonian Parliament voted in favour of the Law on the Referendum on Self-determination (Ley del Referéndum de Autodeterminación Vinculante sobre la Independencia de Cataluña). The decision was voted for by Together for Yes (Junts pel Sí), a coalition of parties in favour of independence, and the Popular Unity Candidacy (Candidatura d’Unitat Popular). During the vote, traditional parties such as Ciudadanos and the PPC, a right-wing party, left the chamber in protest against the referendum due to its underlying illegalities. The next day, the Constitutional Court of Spain reunited to decide whether the law passed by the Catalonian Parliament was in fact constitutional or not. Ultimately, the latter was deemed, for a number of reasons stemming from different holdings of the Court throughout the years. Here are some essential legal examples of these holdings which explain why the actions of the Catalonian Parliament were illegal.
“On September 6th, the Catalonian Parliament voted in favour of the law on the referendum of self-determination”
Catalonia Statute of 2006 – Majority & Sovereignty
The 2006 Statute, which regulates the powers of the region and how these powers are organized, was voted for by the Spanish Congress and then executed by the Government of Catalonia. In this statute, it is stated within Article 222 (B) that “the approval of reform requires the favourable vote of two-thirds of the members of Parliament, submission to and consultation with the Cortes Generales, ratification by the Cortes Generales by means of an organic act, and approval in a referendum by the Catalan electorate”. Therefore the Catalonian Parliament, counting 135 MPs, would actually have needed a total of 90 MPs to pass this bill. However, it was instead passed with a mere 75 votes in favour of it. This failure to comply with its own laws therefore sets Catalonia’s credibility for becoming independent very low.
The Spanish Constitution also establishes that national sovereignty resides in the “Spanish people”. When passing a bill stating that sovereignty instead resides in the Catalonian people, as found within Article 2 of Law on the Referendum of Self-determination, the Catalonian Parliament was actually in complete violation of Section 2 (2) of the Spanish Constitution, and defying one of the fundamental principles it was built upon.
The constitution of a country is the fundamental law which organizes the government, sets different powers and establishes the basic freedoms of every citizen — no piece of legislation is above it. However the Law on the Referendum in Article 3(2) states that this law prevails “on any other that may come into conflict with it”. A law cannot decide by itself that it will prevail over other laws and cannot contradict the constitution when calling for a referendum. So in the minds of constitutionalists, this action could even be considered tyrannical.
The Power to Call a Referendum
Just in the next article, the legislation calls for the Catalonian people to vote on independence. The autonomous Parliament here is implementing a referendum by itself, however section 92 of the Spanish Constitution states: “The referendum shall be called by the King on the President of the Government’s proposal after previous authorization by the Congress”. Therefore, Article 4 violates the way a referendum should be called for by giving the power to the autonomous Parliament instead of the Monarchy.
On October 1st, the Catalonian Government held the referendum regardless of the fact it had been declared illegal by the highest court in Spain. The consequences of such an illegality can be very grave and put both the autonomous region and Spain in serious instability. Catalonia’s leaders seemingly believe everything had been done properly which is, in fact, not the case when looking at these pivotal examples. As Charles Montesquieu put it: “There is no crueler tyranny than that which is exerted under the shadow of the law and with the colours of justice.” History teaches us that when a region establishes itself outside the law, it puts the whole country at a tipping point.
“”There is no crueler tyranny than that which is exerted under the shadow of the law and with the colours of justice.”
After the referendum, Catalan’s President Carles Puigdemont stated that the “Yes” had won and that independence would be declared soon. Mariano Rajoy, the Prime Minister of the Spanish Government, gave him a few days to say officially if he had declared independence or not. The Catalonian Parliament then voted to implement the independence a few weeks after the referendum. In such circumstances, the central Government was forced to trigger Article 155 of the Constitution, which gives Madrid the power to remove the autonomy of a region if it does not comply with its obligations. Such actions, though necessary, puts Spain in a deep crisis, with risks of riots in the streets of Catalonia. As the world watches the events unfold, Spain faces one of its biggest crisis since democracy was restored 40 years ago.