NULR of Note

Catalonia is one of Spain’s wealthiest and most important regions, accounting for 16% and 19% of Spain’s population and economy, respectively. However, Catalonia has its own language and distinct culture, which is one of the many reasons the region has pushed for independence. Although it’s a popular topic in recent news, the independence movement is nothing new. During Francisco Franco’s dictatorship (1939–75), Catalan culture and autonomy was violently suppressed. It was not until democracy returned with the adoption of the Spanish Constitution in 1978 that Catalonia regained its status as an autonomous region. This autonomy was enhanced with the 2006 “Statute of Autonomy of Catalonia,” which stymied the independence movement. However, two events re-energized the movement. First, Spain’s Constitutional Court, which has the ultimate power in determining the constitutionality of government action and legislation, struck down and modified certain provisions of the 2006 statute, generally reducing Catalonia’s autonomy and specifically eliminating any legal significance of the word “nation” therein. Second, the financial crisis led to poor economic conditions that increased the Catalans’ frustration with contributing more in taxes than they receive in government aid.

The referendum from this past month is not unprecedented, as a similar referendum was held in November 2014, in defiance of Spain’s Constitutional Court and Parliament. The referendum had a 42% turnout, with 81% voting for independence. However, Catalonia’s bid for secession was struck down as unconstitutional in December 2015. Nonetheless, the movement was reinvigorated when staunch separatist Carles Puigdemont was elected to head the regional government in January 2016. In September 2017, as a result of Puigdemont’s efforts, the Catalan government called for a referendum to be held on October 1st, with a declaration of independence to follow if the referendum favored secession. Despite the Constitutional Court already ruling this referendum illegal on September 7th, the referendum was held, with a 38% turnout rate and 90% of the votes favoring independence. Thereafter, Catalonia issued an official declaration of independence on October 27th and the central government immediately ousted the Catalan government officials and imposed direct-rule after invoking Section 155 of Spain’s Constitution, for the first time ever. The Constitutional Court ruled the declaration illegal on November 8th.

Why was the referendum ruled illegal? The answer is that it expressly violated Spain’s Constitution. Section 92 permits consultative referendums, submitted to all citizens, on “[p]olitical decisions of special importance.” The referendum must be “called by the King on the President of the Government’s proposal after previous authorization by the Congress.” The Catalonia referendum was therefore unconstitutional because: (a) it was not submitted to all Spanish citizens, (b) it had a binding rather than consultative effect, by mandating a declaration of independence to follow if a majority favored independence, and (c) it did not follow the procedural requirements. Further, Section 149 grants Spain the “exclusive competence over. . . . [a]uthorization of popular consultations through the holding of referendums.” The Catalan government therefore exceeded its authority in passing legislation by referendum, in violation of Section 149.

Based on the unconstitutionality of the Catalan government’s actions, the “Code of Good Practice on Referendums,” adopted by the Council for Democratic Elections and Venice Commission in 2006, does not support the validity of the referendum. Pursuant to Part III, Section 1, “[t]he use of referendums must comply with the legal system as a whole, and especially the procedural rules.” As noted above, the Catalonia referendum expressly violates Spain’s Constitution and the procedural rules it requires for referenda. Further, Spain’s Constitution expressly precludes binding effects of a referendum. Thus, the binding effect of the Catalonia referendum violates the Code’s Part III, Section 8, which states that ““[t]he effects of legally binding or consultative referendums must be clearly specified in the Constitution or by law,” as the effect was not specified, and in fact was precluded. Lastly, Part II, Section 2 states “[t]he fundamental aspects of referendum law should not be open to amendment less than one year before a referendum.” For a referendum like Catalonia’s to be held, not only would Spain’s Constitution need to be amended, but the referendum would have to wait at least a year, which was not the case here.

Therefore, the Catalonia referendum goes against Spain’s Constitution and the Code of Good Practice on Referendums. If the mechanism behind the declaration of independence is unconstitutional, it should follow that the declaration itself is unconstitutional, particularly since it goes against the founding principle of Spain’s Constitution, found in Section 2—the “indissoluble unity of the Spanish Nation.”

Although Catalonia’s actions lack legality, there may be other grounds to support them. It appears the movement is grounded in four factors. First and foremost, there is an inequality in the amount of taxes paid by Catalonia in relation to government aid received. Second, there are significant cultural differences, principally language. Third, Catalonia believes there is an unequivocal political right to self-determination. Lastly, there is a general distrust against the central government because of embezzlement and other corruption allegations.

While those are all issues that should be addressed, they do not appear to rise to the “‘extreme cases’ and ‘carefully defined circumstances’ under which the privilege of secession exists,” as defined by Christopher Borgen in his analysis of Kosovo’s declaration of independence. His research found that for the privilege to exist, “state practice, court opinions, and other authoritative writings” require, at a minimum, three elements be met, including a showing of serious violations of human rights. It does not appear that any of the Catalans’ grievances or motivations for secession fall within that requirement.

Regardless of the merits of the movement, the political reality is that the friction between Catalonia and the central government remains. Spain’s attorney general has brought charges against the ousted Catalan officials. We will have to wait and see how those charges proceed and are carried out. Regional elections will be held in Catalonia on December 21st, where those elected will have the opportunity to continue this unfortunate chapter in Spain’s history, or re-write a new one.