Catalonia ‘s Secession: The Upcoming Referendum

Referenda are political tools with distinctive traits. Power being delegated to the people engenders direct democracy, emphasizing outcome legitimacy. This type of vote offers the ever so comfortable characteristic of inversely taking responsibility off the shoulders of the political class. The more controversial the policy, the greater the temptation of public consultation. It is on this bases that attempts for the celebration of a referendum on Catalonia ’s secession from Spain have been formulated. They have been repeatedly unsuccessful as the power lies outside the scope of Catalonia’s competences and questions of such extraordinary dimensions may only be answered by the Spanish citizenry as a whole, in which national sovereignty resides. The people of Catalonia are quick to denounce antidemocratic behavior; however others picture these secessionists politicians as the authors of an equally consequential attack on democracy.

Understanding the Meaning of Democracy

It is a common misconception that democracy supposes the tyranny of the people. The mistake is nonetheless understandable. From an etymological perspective, democracy does indeed signify the attribution of power to the people. This is nonetheless not what a more comprehensive study of the nature of democracy instructs.

Democracy is not self-sufficient. Irrespective of scale, a framework is necessary for its functioning. This becomes crucial as millions of individuals are required to cast votes for the government of modern administrations. As illustrated by the adoption of the American and French Constitutions in the late 18th century, the modern democratic state is defined by the adoption of law to govern it.

As highlighted by Plato and Aristotle, this is not even a particularity of democracy but a generality applicable to all forms of virtuous political rule. Plato, an advocate of benevolent monarchy, did nonetheless not hesitate in declaring how “full of promise” Human organisation is where “law is the master of the government and the government is its slave”, generating “all the blessings that the gods shower on a state”. Aristotle preferred to emphasise the importance of a legally exemplar process in the appointment of rulers. He philosopher favoured giving power to “some particular persons that should be appointed to be only guardians, and the servants of the law.”

The importance of the rule of law is further underlined by the territorial political division of decentralised states.

The United Kingdom, a state traditionally reluctant to formulate constitutional provisions in an excessively formalistic manner, adopted the very explicit Scotland Act 1998 to effectively delegate a significant part of its competences to Edinburgh for instance. Legal certainty is paramount in questions of constitutional importance and grey zones cannot be left in the determination of what power belongs to what administration. This is at the core of the federalist ideology, at all levels, and essential in its task of recognising the perfectly legitimate specifies of cities like Hamburg, regions like Catalonia or country like Scotland. The possible federal future of European integration will only intensify the spotlight upon these concepts fundamental constitutional aspects in the future.

Cataonia vs. Spain: An everlasting contrast

Spain is one of such complex multi-layered polities. As a reaction to the oppressing and monolithic dictatorial rule of Francoism, devolution was agreed upon by the different forces involved in the democratic transition and approved by its population to the tune of 88,5% at the 1978 referendum on the ratification of the Spanish Constitution. The score soared to 90,4% in the progressively-minded Catalonia, that was being given greater levels of autonomy along with the similarly specific Basque Country.

The Spanish Constitution notoriously put in place a model of state sub-divided in seventeen autonomous communities (and two autonomous cities), with their own parliaments.

This territorial organisation of the state is laid out in the all-important Third Chapter of the Eighth Title of the Constitution. In accordance with the previous discussion of the principle of rule of law applied to federal stately organisations, a clear share of competencies was established, as well as general guidelines for the running of the autonomous communities.

This has all unequivocally been sent through the window by the current Catalan government and a sizeable half of Catalonia ’s population. Following constitutional litigation on the matter of whether an autonomous community could be allowed to organise a referendum (a question with a very simple negative answer given by the immense majority of the national, European and international juridical class), the government of Artur Mas, Catalonia’s current president, has called for anticipated elections in the region for this Sunday, September the 27th 2015.

Unable to celebrate a legally recognisable referendum, the leaders have decided to accessorily declare the elections “plebiscitary”. A move with the significance of an unconstitutional punch thrown at a wall of legal certainty, yet with considerable political weight. The centre-right party of Mr Mas, Convèrgencia and its main left wing opponent in the region, the Esquerra Republicana, have furthermore constituted an electoral coalition named “Junts pel Sí” (Catalan for “Together for the Yes”) in order to reinforce political significance and analogy with a referendum. The coalition has promised to start a procedure for the unilateral declaration of Catalan independence in case of (very likely) victory.

The fact is that the vote will be organised under the Spanish Electoral Law. Catalan Parliament elections find their legal raison d’être in the 2006 Statute of autonomy of Catalonia that surprisingly requires the same electoral norms to be applied as for Spanish general elections. This is particularly surprising as all other autonomies benefit from their own, regionally-approved electoral legislation. The consequence of this is that Catalonia sports the same disproportional representation system as the central Spanish state, resulting in an overrepresentation of the most widely voted list.

This is has dramatic consequences for the supposedly plebiscitary elections. All polls give a majority of between 65 and 67 seats to Junts pel Sí, which could easily turn into an absolute majority of 75 with the support of the also secessionist CUP. The issue is that this is only a consequence of the surplus granted by the electoral law. The combined share of support for the pro-independence parties never surpasses 49% across polls.

The political defeat of an electoral device designed for the supply of parliamentary stability is being utilised against democracy through the violation of the rule of law. Questioned on whether he would carry on with the project should he not gather support of a majority of Catalans, President Mas has made it clear that he would carry on with the sole guarantee of a slim majority in seats.

What is being proposed this weekend to the citizens of Catalonia is hence a farce.

It is a political hijack of the electoral procedure and the rule of law altogether that will leave deep scarves in the already socially complex Catalonia, irrespective of outcome. The consequences could be extremely severe for existing levels of Catalan autonomy. International attention is on the rise and Catalonia is a region of Spain that does not benefit from the soundest public bookkeeping (Fitch rates it at BBB-, well below the national BBB+ average of Spain), complicating the funding of a rather money glutton administration.  International figures such as Barack Obama or Angela Merkel  have expressed support for the unity of Spain and the rule of law throughout the European Union, complicating the financial task of the pro-independence movement in places such as Wall Street or the City of London, where the situation is being closely monitored.

The supposed inviability of Catalonia as an independent state outside the European Union (at least at an early stag) should however not constitute a basis for our rejection. It is the nobler jurisprudential values of democracy through respect of the law that should push towards a denunciation of the electoral instrumentalisation made by the pro-independence side in Catalonia, sidelining everything Europe has stood for since its inception in the work of Greek political theorists some 2300 years ago.

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Guillermo Giralda Fustes

Guillermo Giralda Fustes

Politics, Philosophy & Law student at King's College London writing predominantly on European Union-related affairs.