The Catalan independence referendum
competent to authorize ‘popular consultations through the holding of referendums’. In other words, only the national government can decide whether a referendum can be held. The national government finds additional support for their position in the Judgement of the Constitutional Court (JCC) 103/2008 – the case of the President of the Government against the Basque Parliament – which found the ‘popular consultation for the purpose of ascertaining public opinion in the autonomous community of the Basque country on commencing negotiations for achieving peace and political normaliz ation’ to be unconstitutional. Certainly therefore, the constitution does not provide the possibility of calling a referendum by which the citizens of Catalonia alone could legally decide on the independence of the territory. Even by the statute of Autonomy of Catalonia, the referendum is manifestly illegal, because the ‘Law of juridical transition and foundation of the republic of Catalonia’ , which was approved in a parliament session on 6 th September 2017, cannot stand. This is because the law detailed that the ‘independence would be binding with a simple majority, without requiring a minimum turnout’ yet explicitly the Statute of Autonomy for Catalonia states that a two-thirds majority, 90 seats, in the Catalan parliament is required to permit any change to Catalonia’s status. An additional factor was the conduct of the referendum itself: the adverse circumstances in which it was held meant that international legal standards for the holding of referendums were not met. The police had been ordered by the Catalonian High Court to try to prevent the referendum, and during the process of the vote the National Police and Civil Guard used force to prevent voters going to the polls. The International Limited Observation Mission (ILOM) highlighted that ‘because of the adverse circumstances under which the event took place . . . the referendum could not comply with key international standards.’ Exemplifying this is the statement by the Crisis Assessment and Tre atment Team (CATT) that ‘In the face of external interference there were improvisations and last -minute changes to the voting process that were not always consistent across Catalonia or with what was in the law or in the manual.’ Organ izers of the referendum were under threat of arrest and needed to remain discreet in their preparations: this gave rise to issues of transparency that invalidated the vote.
Thus, in their preliminary reports, all international observers seemingly concluded that the referendum was illegal.
Nonetheless, those arguing in favour of the Catalonian Independence referendum also refer to the Spanish Constitutionwhenmaking their case. Article 1.1 states that ‘ Spain is established as a social and democratic state, subject to the rule of law, which advocates as the highest values of its legal order the following: liberty, justice, equality and political pluralism. ’ This establishes the principle and values of democracy. Further, Article 92 of the Constitution states that ‘ 1. Political decisions of special importance may be submitted to all citizens in a consultative referendum. 2. The referendum shall be called by the King at the proposal of the President of the Government, following authorization by the Congress of Deputies. 3. An organic law shall regulate the terms and procedures for the different kinds of referendum provided for in this Constitution.’ Thus, the principle that difficult questions can be put to the people and their voice be heard is enshrined in the constitution. Further legislation, in the form of the Catalan Act which covers popular consultations by referendum in the autonomous region of Catalonia, states that Catalan citizens can vote on political issues of particular importance in the scope of the powers of the Generalitat (regional government).
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