Catalonian crisis: Rule of law vs democratic opposition

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JAIME S. BAUTISTA

First of 2 parts
THE crisis in Spain’s autonomous region of Catalonia posed the question whether the Catalans’ “democratic opposition” to Spain’s Constitution of 1978 could prevail. The Spanish Constitution was a work of reconciliation by all the political parties of Spain (including the Communist Party of Spain), after the death of the military dictator Francisco Franco, and it was approved at a national referendum in which Catalans overwhelmingly voted in favor.

Last September, Catalonia’s Parlament voted to call a unilateral referendum for independence on October 1 but Spain’s Constitutional Court ruled that the referendum would be illegal. The Spanish Constitution provides that, “national sovereignty belongs to the Spanish people, from whom all State powers emanate” and that “the Constitution is based on the indissoluble unity of the Spanish nation, the common and indivisible self-government of the nationalities and regions of which it is composed and the solidarity among them all.”

The unilateral referendum took place despite efforts by the Spanish government headed by Prime Minister Mariano Rajoy, to prevent it from taking place. The Catalan autonomous Govern headed by Prime Minister Carles Puigdemont claimed that the referendum had a turnout of 43 percent and that the vote was overwhelming in favor of the independence of Catalonia as a republic.

On October 27, the Catalan Parlament declared Catalonia an independent republic by a secret vote of 70 out of 135 members (with the opposition walking out of the session). The secret vote was a sign of weakness. The Parlament met while the Spanish Senate was also meeting, poised to vote on the application of Article 155 of the Spanish Constitution. This was the constitutional measure, similar to other constitutions in the European Union, designed to restore legal order in Catalonia. For a while, there were efforts to persuade Puigdemont to refrain from announcing unilateral independence and to call for autonomous elections as a compromise to avoid Section 155.

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With the approval of Section 155 by the Senate, Rajoy removed Puigdemont from office and called for autonomous elections on December 21, thereby dissolving the Parlament. These measures, Rajoy explained, do not suspend Catalonia’s autonomy. Spain’s Constitutional Court subsequently declared the unilateral declaration of independence as a nullity.

Rajoy justified the extraordinary application of Section 155 as restoring the rule of law. The Catalan separatists argued that their democratic right to vote for independence overrides any decision of the courts. The standoff was between the State’s derecho de estado (rule of law), recognized by the international community, versus the Catalan separatists’ perceived “people power” relying on civil disobedience and the parliament of the streets.

The Spanish flag remained flying beside the Catalonian flag, outside the Parlament, on the first working day following the dramatic events. The Mossos, Catalonia’s regional police, obeyed the orders of the national government to prevent the Catalan republicans from holding office. Puigdemont fled to Brussels where he made a call for “democratic opposition,” seeing the autonomous elections as a plebiscite on independence. Puigdemont and his senior officials now face rebellion and other criminal charges.

No right of secession

The Catalan separatists cannot claim a right to secede under either the national law or international law. The principle of self-determination is applicable to peoples under colonial rule and does not give minorities the right to secede from an established state. The UN Charter in its Article 1 (2) speaks of the principle of self-determination of peoples as a basis for achieving the purposes of the United Nations to develop friendly relations among nations and to strengthen universal peace.

Pursuant to this provision, the UN General Assembly approved the 1960 Declaration of Independence to Colonial Countries and people which sought to end colonialism in all its manifestations. This Declaration sought to give peoples under colonial rule or foreign domination the right to secede. At the same time, Paragraph 6 thereof declared that “Any attempt aimed at the partial or total disruption of the national unity and territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.” The right to secede from an established state does not exist.

Under the influence of the decolonization process, the principle of self-determination was enshrined in Article 1 of both the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (ICCPR). Section 27 of the ICCPR did not include secession as among the rights of minorities.

In light of this historical context, the Canadian Supreme Court in the leading case of Reference Re Secession of Quebec declared that “international law expects that the right of self-determination will be exercised by peoples within the framework of existing sovereign states and consistently with the maintenance of the territorial integrity of those states” and that the right to unilateral secession “arises only in the most extreme of cases, and even then, under carefully defined circumstances.”

Catalonia, as an autonomous region of Spain, exercises the same rights of self-government as the other autonomous regions of Spain. The County of Barcelona was part of the Kingdom of Aragon and later of Spain, and Catalonia was never an independent state. As stated by Rajoy, it is inconceivable to think of Spain without Catalonia or of Catalonia outside of Spain.

Does a state have the right to secede from a union?

Cognizant of this historic fact, the previous autonomous government of Catalonia headed by Artur Mas had previously attempted to hold a referendum, with one question containing two sections: 1) Do you wish Catalonia to be a State? 2) If the response is affirmative, do you wish Catalonia to be independent?

The first question sought to place Catalonia on the same standing as Scotland because the latter was empowered to hold a referendum on independence in 2014. But Scotland has a long history of having been an independent kingdom until it formally joined with England and Wales in 1707 to form the United Kingdom of Britain. Nevertheless, the UK Parliament had to pass an Order in Council granting the Scottish Parliament the necessary powers to hold the referendum.

Whether a state has the right to secede from the union depends on the national law of the union. Quebec also held a referendum on independence in 1995 without the opposition of the federal government. When there was a threat to hold another one, the Canadian government turned to the Canadian Supreme Court, which ruled in the case quoted above that Quebec’s legislature did not have the right to effect the secession of Quebec unilaterally.

(To be continued tomorrow)

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