The next 1st of October will be a pivotal moment in Spanish constitutional history in light of the Catalan "Llei del referèndum d'autodeterminació", which regulates the holding of a binding self-determination referendum on the independence of Catalonia.
This law is the climax of almost ten years of Catalan drift towards independence, started with the massive 2010 Catalan autonomy protest. Theodore Roosevelt famously stated that “the more you know about the past, the better you are prepared for the future”. In the case of the Catalan independence referendum, the past is represented by the issues related to the Estatuto de Autonomía de Cataluña. The Catalan statute was approved by the Catalan Parliament on September 2005 with a majority of 88% (only the Spanish Popular Party voted against) and it was then sent to the national Parliament for approval by law. The national legislative assembly amended the act to the extent that the resulting Catalan statute was defined – to use an expression by Professor Roberto Blanco Valdes, a professor of constitutional law at the University of Santiago de Compostela – “ apocryphal” and the turnout to the confirmative referendum was relatively low.
The icing on the cake was the sentence of the Spanish Constitutional Tribunal n.31/2010 on the Catalan statute, where we find everything and its opposite. Without going into too much legal detail, the restrictive interpretation that the Tribunal gave about large portions of the Catalan statute – approved with substantial majorities by both the Spanish and Catalan parliaments – was questionable at best. Not by chance, it triggered enraged political reactions in Catalonia, culminating on the 10th July 2010 in the massive autonomy protest "Som una nació. Nosaltres decidim”. In the following years – as history often repeats itself – it was again the Spanish Constitutional Tribunal who led, at least from a legal point of view, the ‘Catalan performance’. In March 2014 the Constitutional Court ruled against the Declaration on the Sovereignty and Right to Decide of the People of Catalonia, recognizing – within the Spanish constitutional framework – the “right to decide”, although not extending it to the right of self-determination. Finally, on 7 September 2017 the court has ruled –– not only to suspend the Catalan referendum law, approved by the parliament of the Generalitat of Catalonia, but also to personally warn the 948 Catalan mayors and 62 senior officials of the Generalitat that they cannot participate in the organization of the referendum.
In 2014 the Catalan government decided to carry on with the referendum transforming it into a process of “citizen participation”, the results of which were in favour of the independence; however, the ridiculously low turnout on that occasion supports the theory of pro-unity silent majority. Indeed, today the Catalan government is clearly showing its intention to go ahead with the independence referendum.
The legal aspects of the referendum are simpler than what the political debate suggests, since both the Spanish and Catalan governments are clearly fighting a media battle where there is no room for truth. The tension between national police and demonstrators – especially since the arrest of some Catalan officials – shows that both governments are playing a dangerous game that can easily get out of control.
However, the ‘false truth’ of the Spanish government is supported, whether we like it or not, by strong legal and constitutional grounds.
Firstly, in the Spanish legal system the right to call for a referendum is an exclusive responsibility of the central government. As a result, the Catalan government did not have the constitutional power to approve the "Llei del referèndum d'autodeterminació". This means that even if the referendum had been legal, it would have been only advisory and consultative.
Secondly, in International law – and even less in EU law – it is quite hard to find rational legal grounds to support this act. As pointed out by the constitutional law professor Ismael Peña, a lecturer at the School of Law and Political Science of the Open University of Catalonia, this is an unprecedented event thus should not use XX century international law to address XXI century issues. The legal system should not be used to solve political problems, and this is why a serious and fair political negotiation is the only way out from this Spanish constitutional “tsunami”.
The Catalan case is opening a totally new scenario in the history of Europe: it is the first time a European region – as the former Commissioner for Human Rights of the Council of Europe, Álvaro Gil-Robles, has stated – acts against the democratic constitutional order of its own State, using a referendum which is unconstitutional, unilateral and not recognised by any other State. This may be one of the symptoms of a process of legal ‘glocalisation’, with the States losing their sovereign powers in favour of both supranational organisations and subnational entities. This twofold tendency has been bolstered by the effects of the ongoing economic crisis, as Napoleon has taught us, "c’est l’argent qui fait la guerre".
Domenico Giannino, Associate Lecturer, The Guildhall School of Business and Law at London Metropolitan University and Law Modules Leader, Kaplan International Pathways (London).