Javier Garcia Oliva: The Referendum on Catalonian Independence: The Position of the Spanish Authorities

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.

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 1st October.  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/))