Is the Independence Referendum in Catalonia Unconstitutional

The autonomous community of Catalonia – one of the 17 autonomous communities that form the country of Spain – voted on October 1, 2017 in a referendum for independence from Spain. Voting day was marred by violent clashes between Catalan voters on one side, and Spanish police and the Guardia Civil on the other side. It was also marred by the seizure of some ballot boxes by the Spanish authorities. One of the main reasons for these clashes was that the Constitutional Court of Spain had already suspended the referendum (on September 8) on constitutional grounds. Was the Catalan referendum – whose results state that 92.01% of participating voters backed independence in a 43.03% voting turnout (not accounting for the missing ballot boxes) – unconstitutional? This article will look at just this question without discussing any political, economic or social implications.

The following are links to the Spanish Constitution – in English and in Spanish. The Spanish constitution defines ideals to be honored by Spain such as democracy, justice, liberty, security and wellbeing (preamble), the political and cultural structure of Spain (preliminary part), fundamental rights and duties of its citizens (Part I), the powers and responsibilities of the monarch (Part II), the powers and responsibilities of the legislature which is also referred to as Cortes Generales (Part III), the structure of the central government (Part IV), checks and balances between the executive and the legislative branch (Part V), the powers and responsibilities of the judiciary (Part VI), the role of the government in the economy and finances (Part VII), territorial organization of Spain (Part VIII), the powers and responsibilities of the Constitutional Court of Spain, and the process to add amendments to the constitution (Part X).

Regarding the matter of this article, arguably the most important part of the constitution is Part VIII (Territorial Organization of the State), especially Chapter 3 which discusses the autonomous communities. However, looking deeper into the supreme law of Spain, other parts of the Spanish constitution merit further examination too, especially Section 2 of the Preliminary Part which states that the Spanish homeland is indivisible and based on the solidarity among all Spaniards:

“The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards; it recognizes and guarantees the right to self-government of the nationalities and regions of which it is composed and the solidarity among them all.”

The language in Section 2 in and of itself suggests that the referendum in Catalonia is unconstitutional.

Looking at Part IX of the constitution, Section 161, paragraph 2 gives the Constitutional Court of Spain the power to suspend provisions and resolutions adopted by the bodies of the autonomous communities that have been brought to the Constitutional Court of Spain by the federal government as an appeal, and “ratify or lift the suspension” within five months. This means that the September 8 suspension should be decided on by the Constitutional Court of Spain – particularly to be ratified or lifted – by February 8, 2018. The suspension document from September 8 also mentions Section 30 of the constitution as part of the decision to suspend the referendum. However, Section 30 merely states that “Citizens have the right and the duty to defend Spain” (in paragraph 1) and that “The duties of citizens in the event of serious risk, catastrophe or public calamity may be regulated by law” (in paragraph 4). If defending Spain includes defending its territorial integrity regardless of whether it has been attacked militarily or has had one of its 17 autonomous communities, or either of the cities of Ceuta and Melilla, declare war on it, then the referendum is truly unconstitutional. The Constitutional Court of Spain’s September 8 decision potentially sets a precedent in Spanish case law that outlaws any autonomous community’s aspirations to independence.

In Part VIII, Section 138 defines the principle of solidarity throughout Spain, and that includes all the 17 autonomous communities:

“The State guarantees the effective implementation of the principle of solidarity proclaimed in section 2 of the Constitution, by endeavoring to establish a fair and adequate economic balance between the different areas of the Spanish territory and taking into special consideration the circumstances pertaining to those which are islands.”

Therefore, if Catalans demand independence from Spain as a result of a referendum under the pretext that too much of its resources is being redistributed from their autonomous community to poorer autonomous communities within Spain, Section 138 makes their anger at the central government unjustified unless the principle of solidarity has been defined in a legal precedent or a bill was passed by the Cortes Generales and signed by the King into law (Section 91), and having that law’s solidarity threshold passed.

In fact, Section 158 makes any anger by Catalans’ part for economic reasons unjustified on constitutional grounds. Paragraph 2 states that “With the aim of redressing interterritorial economic imbalances and implementing the principle of solidarity, a compensation fund shall be set up for investment expenditure, the resources of which shall be distributed by the Cortes Generales among the Self-governing Communities and provinces, as the case may be.” Therefore, Spain’s legislative body – the Cortes Generales – with the King’s approval – is the decision maker on how the compensation fund should be spent. That decision, as paragraph 1 suggests, should happen on the basis of “proportion to the amount of State services and activities for which [the autonomous communities] have assumed responsibility and to guarantee a minimum level of basic public services throughout Spanish territory.” Paragraph 1 doesn’t necessarily have the potential to incentivize growing sizes of autonomous governments within the autonomous communities because if addressing imbalances is based on the proportion of the amount of state services and activities for which the autonomous communities have assumed responsibility, then poorer autonomous communities might be incentivized to grow their governments on one hand, but on the other hand the guarantee is to a minimum level of basic public services – meaning that the central government may allocate anywhere between the minimum level and above.

The October 1 referendum appears to be unconstitutional considering the language of Section 92 as well. It states that “Political decisions of special importance may be submitted to all citizens in a consultative referendum (paragraph 1); The referendum shall be called by the King on the President of the Government’s proposal after previous authorization by the Congress (paragraph 2); An organic act shall lay down the terms and procedures for the different kinds of referendum provided for in this Constitution (paragraph 3).” The October 1 referendum was not consultative (seeking advice), it was binding. Therefore, it appears to be unconstitutional in two aspects of Section 92: it does not ask the rest of the Spaniards as to whether they approve of an independent Catalonia and it is not advisory but instead unilateral in decision.

In Part VIII, Section 145 also prevents autonomous communities from uniting into a federation (paragraph 1) under any circumstances. It is interesting to note that Section 145 represents a contrast to the Iraqi constitution, as discussed in a different article, which provides “one or more governorates [with] the right to organize into a region based on a request to be voted on in a referendum.”

In Part VIII, Section 153 gives another reason to conclude that the October 1 referendum in Catalonia was unconstitutional. Section 153 states that control over the bodies of the autonomous communities shall be exercised by the Constitutional Court in matters pertaining to the constitutionality of their regulatory provisions having the force of law. This gives the Spanish government the right to appeal the Catalan referendum to the Constitutional Court of Spain which on September 8 declared the referendum unconstitutional.

Section 155 appears to further justify the Spanish government’s reaction to the Catalan referendum. It provides the Spanish government with flexibility on reaction to any action that is “seriously prejudicial to the general interest of Spain” – and it could be argued that the Catalan referendum is counter to the principle of solidarity in Section 2 discussed above – and reaction to any action that has not provided a satisfactory response to inquiries by the Spanish government.

Conclusion

The October 1 referendum is unconstitutional based on the following:

  • Section 2 of the Preliminary Part which states that the Spanish homeland is indivisible and based on the solidarity among all Spaniards.
  • Section 161, paragraph 2 which gives the Constitutional Court of Spain the power to suspend provisions and resolutions adopted by the bodies of the autonomous communities that have been brought to the Constitutional Court of Spain by the federal government as an appeal, and “ratify or lift the suspension” within five months.
  • Section 158 provides the Spanish government with the power to redistribute wealth as part of “redressing interterritorial economic imbalances.”
  • The referendum is not consultative as per Section 92, Paragraph 1.

The constitution also gives the Spanish government the flexibility to act however it sees fit to protect “the general interest of Spain,” and Spanish Prime Minister Mariano Rajoy already stated that his government could resort to Section 155.

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