The Catalan independence referendum
The 1978 constitution is supposed to offer a flexible outline where both the ‘indissoluble unity of the Spanish nation’ and the ‘provision for the right to autonomy of nationalities’ in Article 2 must be accepted. This pluri-national constitutional understanding of the state is prevalent in Catalonia and a few other autonomies. Therefore, nationalist leaders there read the Spanish authorit y’s persistent restrictive interpretation of the agreement to be a blatant violation of the constitution to the authorities of Catalonia. The democratic principle was not being upheld (as was seen in 2014, when the Spanish government banned even a non-binding vote on Catalan self-determination). Thus, political leaders felt enabled to hold the referendum unilaterally, without state interference. Perhaps this was more an emotional response to the spirit of the Constitution than a strictly legal response. Article 92 and The Catalan Act allow only for Advisory Referendums. The outcome of any such referendum cannot have directly effective legal consequence, but in effect it would be unconstitutional and against the values laid out in Article 1 of the constitution not to listen to the referendum. (This article is particularly significant as essentially it informs the interpretation of the rest of the constitutional text.) Another factor that mitigates the illegal conduct of the referendum is that all international observers agreed that those involved in the preservation of order attempted to their utmost ability to comply with international standards. An international parliamentary delegation observed that ‘ as far as the organization of polling stations is concerned . . . the process was prepared thoroughly and in agreement with the existing legislation’ , and ‘those who worked in the polling stations did so in good faith, and we saw no sign of attempts to manipulate the vote’ . The ILOM acquiesced that ‘polling staff perfo rmed to the best of their ability in trying to cope and in trying to follow electoral procedures.’ The situation was epitomize d in one statement: ‘the democratic process was threatened but it was not destroyed.’ Ultimately, the latent illegality of the process was countered in the eyes of Spaniards and the international community by the pervasive repression of the Spanish authorities and their disregard of civil rights obligations. Strikingly, it was claimed that Catalan voters were subject to ‘a degree of force never before seen in a European member state’ and this transformed the referendum into an act of resistance and desire to be heard. It becomes trivial for the national government to mention the ‘low’ 42% turnout when riot police violently prevented voters from reaching ballot boxes. Generally, external politicians refrained from commenting on the issue; however, the images of human rights abuse published by the media made the referendum an increasingly international issue. Article 155 of the Spanish Constitution proved problematic in this context. Article 155 states that ‘ If an Autonomous Community does not fulfil the obligations imposed upon it by the Constitution or other laws . . . the Government, after lodging a complaint with the President of the Autonomous Community and failing to receive satisfaction therefore, may, following approval granted by an absolute majority of the Senate, take the measures necessary in order to compel the latter forcibly to meet said obligations, or in order to protect the above- mentioned general interests.’ Both the procedure and extent of the methods used to apply Article 155 have been questioned however by commentators, who asks how compatible this article is, if it almost permits authoritarian behaviour that is against the democratic framework of the Constitution.
The application of these methods has already resulted in challenges before the Constitutional court. Nevertheless Article 8 states that ‘the Army’s mission is to guarantee the sovereignty and
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