Nearly two weeks after the first of the so-called “disconnection” laws was fraudulently approved in the Catalan parliament, the northeastern Spanish region is living through a contradictory and disconcerting situation of double authority and double legality. On the one hand, democratic order is still functioning with regard to nearly all aspects of everyday life. The Constitution and the laws that derive from it are being observed, as is the regional Statute of Autonomy of Catalonia, known as the “Estatut.”
But when it comes to politics, the region’s institutions, and public television and radio broadcasters, other rules are now in place, ones that have been legitimately suspended by the only body that can do so, the Constitutional Court, and in the wake of that suspension, such breaches constitute illegal acts.
There can not be two parallel legalities, with similar legitimacy, whereby the most convenient can be chosen
There can not be two parallel legalities, with similar legitimacy, whereby the most convenient can be chosen, as if it were a menu between options of equivalent offers. Because there can only be one democratic legality, and that is the one derived from the Constitution and the Estatut.
But in practice, this legality has been living side by side with an illusion of institutionalism, with a mirage of alternative rules, with a phantasmagorical alt-legality founded on facts on the ground, on a parliamentary coup (extended by the recent closure of the regional chamber) and by disobedience of the Estatut’s rules.
The driving forces behind these facts are trying to force a unilateral proclamation of independence that constitutes a frontal attack against both domestic and international law. It would arrive after the sought-after celebration of an illegal referendum, one that is lacking any kind of democratic safeguards; one whose celebration would be impossible in any other country in democratic continental Europe, since all of their constitutions prohibit such an experiment. Let us state one more time, and with clarity: the right to self-determination that pro-independence forces are calling for is not recognized by any democratic country in the world.
Citizens are being ordered to man polling stations, but at the same time being warned that doing so will be a criminal offense
The illegality of this invention is well established and there can be no doubts about it – not even among the secessionists themselves, although they will only admit as much in private. All associations of judges, which often disagree on a number of different matters, have just pointed this out, indicating that a government that calls for the law to be breached lacks legitimacy and, at that moment, is no longer an authority; and as such, citizens should and must oppose its instructions.
The Catalan regional government is hiding behind its power to give an appearance of legality to the illegal acts that it is committing. In the face of this, a democratic state has to operate within the law, taking action over illegalities as they are committed, employing its instruments to do so in a reasonable manner, using pressure and warnings – combining efficiency and prudence.
The result of this dynamic is an apparent stalemate, which is creating an intolerable juridical insecurity for citizens, who are being ordered to man polling stations, but at the same time being warned that doing so will be a criminal offense.
The regional government has constructed a complex and fraudulent pseudo-institutional framework
The Catalan regional government has managed to furnish its insubordination with apparent normality. And the central government in Madrid is managing to dismantle elements of illegality, but not in their entirety. As such, many mayors are going to facilitate the use of public spaces as polling stations, but they have been called to give statements before prosecutors; many others who are observing the law are being threatened by the regional government; the police are seizing campaign material, but have not managed to locate the ballot boxes (if indeed they exist); a judge orders the referendum website to be shut down, but the regional government simply clones it; and the “electoral” campaign rallies continue to be held. The activism of regional premier Carles Puigdemont at such rallies is breaking the rules of the European Council that demand a certain neutrality from its leaders, but above all else it constitutes a challenge to the justice system to either suppress or detain him.
Many of the limitations of the rule of law are derived from democratic principles and values. Only dictatorships (and those who aspire to set up an autocratic state, such as secessionism) skip the rules. In Spain there is a separation of powers and independent courts that are guided by the principles of legality and proportionality.
The regional government has constructed a complex and fraudulent pseudo-institutional framework; dismantling it will not be easy, but there is no option but to do so, if the end of autonomy and the abolition of the Constitution is to be avoided. The stalemate between democratic order and chaos cannot continue. It’s unstable and unsustainable. And above all else, it is unacceptable. The government must not allow this legal parallel to continue to take root, lest it should gain legitimacy among citizens, who, by this stage of the ongoing crisis, are becoming increasingly confused. Perhaps this legality should not have been allowed to arise in the first place; but of course, with the due logic and prudence, it should not allow it to consolidate.
English version by Simon Hunter.