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Referendum in Catalonia: Beyond the Headlines

October 5, 2017

According to a recent article in the New York Times reporting on the October 1 independence referendum in Catalonia, “police officers in black RoboCop uniforms and Darth Vader helmets blocked ordinary citizens from voting. They beat people with batons, fired rubber bullets and wounded pensioners. All of it was captured by smartphones and news cameras and spread around the world. It is the kind of violence the European Union would ordinarily condemn in high moral terms and even consider punishing. But that was not so easy this time. The nation in question was one of its own: Spain.” The article goes on to imply that, in a conflict between “the fundamental democratic rights of free speech and free assembly and of individuals to vote,” on the one hand, and notions of sovereignty and territorial integrity, on the other, the EU is choosing to side with the latter for self-interested reasons; namely, discouraging regional separatism across Europe. But, on this occasion, the NYT may have missed part of the point. It is indeed true that the European Commission, while generally condemning violence and calling for dialogue, has so far remained behind Spanish Prime Minister Marian Rajoy, claiming that “[the Catalan referendum] is an internal matter for Spain that has to be dealt with in line with the constitutional order of Spain,” and affirming its “trust [in] the leadership of prime minister Mariano Rajoy to manage this difficult process in full respect of the Spanish constitution and of the fundamental rights of citizens enshrined therein.” It is also true that the EU is likely to see in Catalan separatism a return to the very nationalism that the project of European integration was meant to overcome. But in this show of support, the concern that remains at the forefront of the cited statements is not that of a blind defense of territorial integrity; rather, it is that of something much more fundamental to European ideals: the rule of law.

Police 1


Beyond the sensationalist headlines, the situation in Catalonia, and its explosion during the attempted vote on Sunday, is marked by a number of complexities that require a serious analysis. Despite the powerful and disquieting imagery of armored police beating down on peaceful voters, the question is not simply (or perhaps even not accurately) one of democracy versus repression, or of popular action versus state power. The dispute is in fact one between conflicting notions of democracy, and ultimately between the rule of law and the desire for self-determination, which is precisely what makes the whole situation so complicated, and so ripe for polarization and uncompromising viewpoints.

To begin with, with regards to democracy, both sides claim to be acting in its defense: one camp defends the right of a distinct community to decide on its own future by means of the ballot, while the other defends the right of democratic majorities to have their decisions respected when dissenting minorities are adequately (and even super-proportionally) represented in the decision-making process. This brings us to the question of the rule of law, which is inescapably tied to that of democracy. Because, in any democracy, the right of citizens to vote must occur within the boundaries set forth by law: not everything is subject to a vote, and certainly not by whatever self-defined group and in accordance to whatever ad-hoc procedures (or else the principle of democratic majoritarianism would be emptied of any meaning).Rajoy The Spanish Constitutional Court declared the Catalan government’s law calling for a referendum on independence unconstitutional for contravening the fundamental principles of the Constitution that all Spaniards, including Catalans, democratically voted for in 1978, and which marks the commonly-agreed-to rules of democratic participation. Insofar the referendum deviated from those rules, it represented a challenge to democracy, a challenge that the central government was legitimized to oppose.

But that is not the end of the discussion. While Catalans’ claim of a right to vote may not be sheltered by democratic principles, it may find justification in the idea of self-determination. The question is thus whether the drive for self-determination is a legitimate one in the present case, a question for which different actors will have different answers. But we should at least clear away some misconceptions. Catalans are at the moment not an oppressed minority (even if they may have been at times in the more distant past): they live in an advanced democracy (Spain) in which all citizens have equal rights to political participation and representation; Catalonia is a region that enjoys an important degree of autonomy (to the point that the region’s political institutions are currently serving as a platform for independence); the Catalan government, elected by the residents of Catalonia, eagerly promotes Catalan culture and language in the region; and, even in the current time of crisis, the central government is choosing not to take control over the regional administration, which it would be authorized to do under Article 155 of the Constitution in cases of exceptional emergency. Nevertheless, Catalan historical distinctiveness, along with more recent conflicts with the Madrid government (especially following the 2008 recession) may provide a degree of legitimacy for demands of increased self-determination. That is a political question for which there is not necessarily an objective answer. But it is evident that the Madrid government also has a legitimate interest in preventing that answer to be provided unilaterally and outside of the boundaries of constitutional democracy.

Preparations Are Made Leading Up To The Catalan Independence Referendum

A different issue, however, is whether the government’s response to the referendum was an appropriate one. Many would agree that it was not. True, the national police were following court orders, after the regional police largely refused to fulfill its assigned role of preventing the polling stations from opening; and the intervention, rather than targeting the voters, was meant to seize referendum materials and close down the locations in which the vote was occurring, which in turn lead to clashes with those seeking to protect their own ability to vote. But there is no doubt that the police response was heavy-handed and likely disproportionate, with officers using rubber bullets and batons against unarmed civilians; in the end, the injury-toll exceeded 800 (representing those who were treated by the health services, the number of persons actually requiring hospitalization being limited to four). In addition, the very notion of thousands of agents acting against the population was overall a troublesome one, and rightly generated the image of a repressive atmosphere in which force was the principal measure resorted to by the state. This image was also problematic from a public-opinion perspective, and led to a predictable reaction by the international community. Even the EU, within the framework of its support for the Spanish government, condemned the use of violence as a means to resolve the situation and called for dialogue among the parties involved.

Moreover, the resort to the police as the method to quell the aspirations of Catalan secessionists may have served to further fuel secessionist sympathies, and to strengthen the Catalan government’s claim of the need for further distancing from Spain. Indeed, Carles Puigdemont, president of the Catalan regional government, was quick to capitalize on Sunday’s events, condemning Madrid’s actions, calling for international mediation, and claiming that the results of the referendum (ninety percent in favor of secession, with an alleged turnout of forty-two percent) gave him a mandate to push forth with a unilateral declaration of independence.

Puigdemont 3

The results of the referendum, however, are questionable, not just because of the irregular nature of the vote, which offered few of the guarantees required for a poll to be certified internationally, but also because of the self-selecting nature of the participants: the Constitutional Tribunal’s declaration of the referendum’s unconstitutionality likely meant that those Catalans who still consider themselves bound by the Spanish legal system (who would arguably also be those holding a deeper allegiance to Spain) viewed the vote as illegitimate. In other words, participation in the referendum was itself a good indicator of the participant’s political stance on the issue of self-determination.

But, going back to the procedural irregularities of the referendum, it is important to note that this may have in fact been one of the main factors behind the central government’s decision to use the police as a disruptive force. The logic behind this decision, regardless of its strategic and even moral questionability, is evident: in the knowledge of the constant threat of intervention by the state’s security forces, the Catalan government would be forced (as it indeed was) to conduct the vote in a semi-clandestine and makeshift manner hardly compatible with the openness that a polling process requires. Examples of this were the print-at-home ballots, the lack of judicial oversight, or the (quite literally) last-minute decision to change the voting rules to provide for a universal census and for voters’ ability to vote in any center of their choice, with voter-ID checks based on a rudimentary and often malfunctioning (or police-intervened) software. Moreover, the very seizure of ballot-boxes and the closure of polling centers by the police may have served to further discredit any announced results of the vote.

Under these conditions, regardless of the causes, it is clear that the results of the referendum cannot be seen as genuinely representative. The question, now, is how the different actors will play their cards in the coming days. And, at this moment, it seems like the EU’s call for dialogue within the boundaries of the Spanish Constitution is the best available option, for right now the situation has become a lose-lose one. On the one hand, any unilateral declaration of independence by the Catalan government would lack legitimacy in the eyes of the international community due to its breach of Spanish democratic legality and to the lack of verifiable popular backing, and it would likely compel the Spanish government to trigger Article 155 of the Constitution and assume control over the Catalan administration. On the other hand, a continuation of heavy-handed, hardline policies by Madrid will almost inevitably close the window for any potential political settlement in the future, and will drive more Catalans towards radical secessionism. Naturally, any dialogue would mean that both sides would have to make concessions, but those concessions can still happen within the boundaries set forth by the rule of law, including the resort to a constitutional amendment process if need be (which, for example, could transform Spain into a formally federal system).

As Roger Cohen of the New York Times writes, “[i]t’s obvious that the middle ground needs to be re-created in Spain, that Rajoy (if he survives) must drop his high-handedness and Puigdemont his destructive hubris, and that a dialogue is essential. A creative road to a federal Spain could, with time, be imagined.” In a seemingly insolvable conflict between the rule of law and a nation’s quest to redefine its relation to the state, a process of constitutional reform, respectful of the requirements set forth in the Spanish Constitution, may provide the only opportunity for accommodating both sides of the dispute, or at least the parts of those sides that may still be willing to engage in some form of meaningful dialogue. It is precisely this middle ground that the EU seems to be advocating for in the statements cited at the beginning of this piece, and its advocacy for dialogue appears at this moment to be the most prudent stance. The alternative is a continuation of the current downward spiral of confrontation, in which all sides are likely to lose more than they will ever gain.








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