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EL PAÍS analyzes 10 claims commonly made by separatists to support their cause

Barcelona / Madrid

The Catalan pro-independence movement bases its claims on a set of emphatic and oft-repeated assertions. These range from historical beliefs (that there was, for example, a war of secession in 1714 that resulted in a subjugated Catalonia) to economic maxims (Spain is robbing us, we’d be richer outside Spain).

These assertions are all false. EL PAÍS has analyzed 10 of the myths that are used to support the separatists’ story, and found that not one of them withstands detailed scrutiny.

For instance: it is not true – and European treaties reflect this – that an independent Catalonia would automatically join the European Union. On the contrary, it would have to embark on a long and winding institutional and international journey, with the United Nations as a middle stage.

Nor is it true that the Spanish system of devolved powers to the regions (el estado de las autonomías) has failed. Or that voting is an exercise in democracy in all cases (dictatorships also organize referendums). Or that the October 1 ballot is legal – it is illegal in content, in the manner it was passed by the Catalan parliament and in the way it violates referendum standards set by the Council of Europe’s Venice Commission.

It is also untrue that Catalonia can legally secede from Spain by invoking the right to self-determination, as this right is reserved for nations under colonial rule. Nor is the 1978 Constitution hostile to Catalans.

1. IN 1714 THERE WAS A WAR OF “SECESSION”

The pro-independence movement falls back on old, romantic historical material claiming that the War of the Spanish Succession – a 12-year-long European conflict caused by the death in 1700 of Charles II, the last Hapsburg monarch of Spain – was in fact a war of secession involving Catalonia’s independence from Spain. Separatists claim that Catalonia was an independent and democratic nation that was “conquered, and its freedoms abolished.” Comparisons are drawn with the American colonies and their struggle for independence from Britain (Give Catalonia its freedom to vote, The Independent, 10/10/2014).

But that’s not the way it happened. When Charles II died without any direct heirs, a European battle broke out over control of the Spanish crown, which at the time ruled over a global empire. The two main candidates to succeed him were Philip, of the House of Bourbon (and grandson to Louis XIV of France) and the Archduke Charles of Austria, son of Emperor Leopold. The Austrian candidate was backed by the Dutch Republic and England, who feared excessive French power on the continent.

The war between different monarchies also became a war between different projects: Anglo-Dutch free-market views versus French protectionism; trade-oriented bourgeoisies against an alliance of farming and courtesan aristocracies; the early confederacy system practiced by Vienna pitted against the absolute centralization championed by France; the peripheries versus central Europe.

These dividing lines found supporters in various parts of the Iberian peninsula: although the alliances were short-lived, the kingdom of Castille was more in sync with French positions, while the principality of Catalonia, more trade-oriented, sided with the Austrian candidate.

However, Catalans had originally received the Bourbon monarch enthusiastically, as described by chroniclers who specialize in the era such as Joaquim Albareda (La guerra de sucessió i l’Onze de setembre, Empúries; y Política, economia i guerra, Barcelona 1700, Colecció La Ciutat del Born).

The Spanish War of the Succession was not fought over secession or patriotic ideals

Standing before the Catalan Courts in 1701 (the first time that the courts had convened since 1599, suggesting not much activity on their part) Philip swore allegiance to the Catalan constitutions that dated back to the Middle Ages and awarded some trade advantages. But pushed by an anti-French syndrome, as well as an invasion of French manufacturers and despotic measures by the viceroy, the Catalans changed allegiance and supported the Archduke, who abandoned them to get himself crowned emperor in Vienna.

It was not a war pitting one nation against another, or one that was fought over secession or patriotic ideals. Instead, old Catalan laws and constitutions were used by both sides for their own purposes. The war brought disasters with it, but it did not destroy the principality. The end of the war catapulted Catalonia toward an economic revolution, first in farming, and later in an incipient industrial sector, as noted by the historian Pierre Vilar in Catalunya dins l’Espanya moderna (Ediciones 62).

The father of the Spanish Constitution including Miquel Roca (first on the right) and Jordi Solé Tura (with his back the camera).
The father of the Spanish Constitution including Miquel Roca (first on the right) and Jordi Solé Tura (with his back the camera).

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2. THE 1978 CONSTITUTION IS HOSTILE TO CATALANS

Separatists claim that it is necessary to move beyond the 1978 Spanish Constitution because it is “hostile to Catalans.” And they plan to repeal it based on the 1.9 million votes that went to pro-independence parties (Junts pel Sí and CUP) at the 2015 regional election. These votes represent 47.7% of voters. Yet the Constitution was approved by 2.7 million Catalans, representing 91.09% of voters, at the constitutional referendum that was held on December 6, 1978. That is nearly twice as many. Only 4.26% of Catalans rejected it, compared with the national average of 7.89%. And turnout was 67.91%. Catalonia and Andalusia were the two regions where support for the Constitution was most overwhelming.

It seems obvious that repealing the current constitutional framework would require at least a similar majority today.

The fact is, the 1978 Constitution is typical of a deeply decentralized state.

Unlike France or Italy, which are highly centralized, Spain modeled its constitution after the German Federal Republic. Thus, Section 2 “recognizes and guarantees the right to autonomy of the nationalities and regions of which it is composed and the solidarity among them all.”

The 1978 Constitution is popularly referred to as “the Catalan constitution” because two eminent Catalans, Miquel Roca Junyent and Jordi Solé Tura, worked on its text; also because it was partly inspired by the Republican Constitution of 1931 and the Catalan Statute of 1932.

The system born out of that constitution, and which some now deride as “the 1978 regime,” awarded Catalans a historically unprecedented degree of direct participation in the running of Spanish politics, with an active presence in Congress, the Senate and countless public agencies.

Parties such as the Catalan Socialists (PSC) played prominent roles in the Socialist administrations of Felipe González beginning in 1982, while the Catalan nationalists of CiU – then a moderate group – often played the role of kingmaker in Congress, conditioning all Socialist (PSOE) and Popular Party (PP) governments.

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3. THE “AUTONOMÍA” MODEL HAS FAILED

Separatists say that the nearly 40 years of self-government only serve to demonstrate the system’s failure, that there has been a recentralization movement, and that the next logical step is independence.

The 1979 Catalan Estatut, which followed up on the Constitution, established a system of self-government without precedent in the entire history of Spain. Catalan became an official language and the language used by default, leading to its notable recovery. Progress was made on fiscal co-responsibility and tax-collection powers; basic welfare services (health, education) were devolved, followed by control over the prison system and police force.

The 2006 Estatut went even further in advancing self-government in Catalonia, despite the fact that a Constitutional Court ruling from 2010, based on an appeal lodged by the PP, curtailed it. This controversial decision was a watershed in popular perceptions over Catalonia’s place in Spain and increasingly radical nationalist views about a break in the underlying constitutional agreement.

Although the court ruling only eliminated one section of the new Estatut and modified 13 more out of 238, the qualitative effects of the decision were much bigger than the quantitative ones. Catalonia viewed it as an affront.

Despite that setback, which was followed by recentralizing laws passed by the PP since 2012, the degree of self-government enjoyed by Spanish regions, and most notably Catalonia, is far from passé, as some would argue. On the contrary: even if it could use some improvements, it is still a role model in international terms: Spain ranks seventh in OECD countries on a chart of Fiscal federalism, and first for decentralization between 1995 and 2004 (Fiscal federalism, OECD, 2016).

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Catalan Premier Carles Puigdemont in 2016.
Catalan Premier Carles Puigdemont in 2016.

4. SPAIN IS AN AUTHORITARIAN STATE

Spain is an advanced democracy that enjoys the highest levels of freedoms and respect for individual and collective rights. That is certified by all of the international institutions to which the country belongs, as well as all of the centers of study that are dedicated to evaluating the quality of democracy in different states.

Internally, the rule of law and the division of powers are guaranteed by the courts. Internationally, Spain is a signatory to all human-rights conventions, and political and civil freedoms conventions from the United Nations, and is a member of the European Council and its agreements on the protection of rights. It is also a member of the European Union and a signatory of the EU Charter of Fundamental Rights.

All of its national legislation and the rulings of its courts are submitted to the courts in Strasbourg (Council of Europe) and Luxembourg (European Court of Justice). As the cases of Hungary and Poland show, EU states are subject to a strict regime of vigilance on the part of European institutions to detect any deviation of power, violation of rights or attack on freedoms or the separation of powers.

Neither the central government nor the Catalan regional government, nor any kind of pro-independence organism, has turned to any of these international organizations to denounce any type of violation of rights, nor has the Spanish state been recognized or sentenced – inside or outside the country – for this kind of incident.

Freedom House awards Spain with the highest score for political and civil rights: 95/100, the same score as, for example, Germany. The Economist awards Spain an 8.3 out of 10 on its democracy index, which places the country between France (7.92) and Germany (8.6). The Polity IV Project, which measures authoritarianism and the progress of democracy, has placed Spain with the maximum score for democracy (10) since 1982.

What’s more, in its report in 2017 on human rights, the organization Human Rights Watch makes no mention of the alleged suppression of rights in Catalonia, nor does it mention Catalonia as a specific issue.

And while in its last report on Spain, the Organization for Security and Co-operation in Europe’s (OSCE) High Commissioner on National Minorities, warned about the integration of Gypsies, neither that text nor its report on linguistic rights made any mention condemning Spain.

Freedom House awards Spain with the highest score for political and civil rights: 95/100, the same as Germany

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5. SPAIN IS ROBBING US

Opposition deputies led by Inés Arrimadas (Ciudadanos) stage a walkout from the regional Catalan parliament during a vote to approve regional breakaway laws on September 6.
Opposition deputies led by Inés Arrimadas (Ciudadanos) stage a walkout from the regional Catalan parliament during a vote to approve regional breakaway laws on September 6.

This untruth was put into circulation by the regional government under premier Artur Mas in 2012, when he published a calculation claiming that Catalonia is paying €16.4 billion into the country’s common budget. The supposed robbery of 8.4% of Catalonia’s GDP was circulated by the former regional premier Jordi Pujol: “Paying around 9% of GDP in the form of solidarity, and often even more than that, is becoming a plundering that is seriously damaging Catalonia and its people.”

This calculation is nonsense. The nationalist study that in 1994 launched the concept of “plundering” calculated the balance at 7.56% of GDP, of which the contribution to inter-regional solidarity accounted for 2.44 percentage points. The study, from Jordi Pons and Ramon Tremosa, cited the excess of deficit in something over five points, not nine. Figures that are not so far from the fiscal deficits of more prosperous territories in federal countries, at around 3.85%.

In reality, Catalan nationalists defended their proposal of a fiscal pact with a model similar to that of the Basque Country with a solidarity quota of 4% of GDP (reduced to 2% in some versions), meaning that the excessive fiscal deficit would not be eight points, but rather four. But the double totem figure of €16.4 billion (8.4% of GDP) was the one used for propaganda purposes. And it was subject to a lot of criticism as being excessive, given that it was calculated according to one of two methods (and six variations) of the scientific calculations of the balances (“monetary flow”: territory where the public spending is taking place), less adequate than its alternative (“benefit” to each population, independently of the place where spending is taking place).

The economist Antoni Zabalza differentiated between the economic cycles. In the book Economy of a plurinational Spain (Economia d’una Espanya plurinacional), he calculated that if in boom times the Catalan deficit oscillated around 8%, in times of crisis it was much lower or even became a surplus. Along a similar line, Josep Borrell and Joan Llorach, in their book The accounts and the tall tales of independence (Las cuentas y los cuentos de la independencia), used an estimation of the regional government according to which the imbalance for Catalonia would reach in 2015 €3.228 billion – i.e. just 1.6% of its GDP.

So after having become the “official truth of the [independence] process, the fervor over the legend of the lost €16.46 billion gradually lost traction thanks to greater economic literacy.

In reality, there is a certain consensus that Catalonia contributes what is due according to its own capacity and its wealth; but that it receives much lower investment than what is adequate for the size of its GDP and its population: from 2011 to 2015, state investment for the whole country fell by 36.6%, but by 57.9% in Catalonia; and even less was actually carried out. This is one of the appropriate ways to correct the dysfunctions – not plundering – of the current situation. In any case, the official budgets of the government for 2014 indicated that Catalonia was not the top net contributor (fiscal deficit of €9.892 billion, 5.02% of GDP), but the second, after Madrid (€19.205 billion, 9.8% of its GDP).

While those imbalances do not strangle the growth of the most prosperous territories, their greater net contribution derives from the principle of progressive taxation (greater wealth, higher taxes), as is the case with individuals.

What’s more, the fiscal deficit compensates its trade surplus (the industrial occupation of the less-developed regions): this is the case in the EU between the north and the south. When the “net [European] contributors” have rebelled and have demanded to pay less into the common budget, the Catalan authorities have not sided with them. It’s the same thing!

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6. WE WILL BE MORE WEALTHY ON OUR OWN

Deputy Catalan Premier Oriol Junqueras (left) and Catalan Premier Carles Puigdemont leave a session of the regional parliament.
Deputy Catalan Premier Oriol Junqueras (left) and Catalan Premier Carles Puigdemont leave a session of the regional parliament.

The argument that Catalans would be richer on their own is something of a daydream.

It is true that, along with Madrid, the Basque Country and the Balearics, the region is one of the most prosperous.

It is also true that they have maintained and even increased their level when compared to the rest of Europe – in terms of prosperity, measured in GDP per capita – with very advanced regions, such as Rhône-Alpes (France), Lombardy (Italy), and Baden-Württemberg.

And it is true that, at least until the start of the Great Recession, it was doing better than these three. It did so, crucially, as part of Spain, as part of the Spanish economy, as part of what is defined by secessionists as the Spanish state, one that it considers to be hostile, an enemy: but in its bosom, Catalonia has done nothing but progress.

The radicalized version of nationalism paints a rosy picture in the case of separation, ignoring or minimizing the costs of doing so. As with the indirect costs, too: the loss of economic synergies and intellectual stimulus obtained by belonging to a large European economic space, one that is a world leader in trade, assists with development and an advanced social model.

As such, the publicists of secessionism argue that, once independent, Catalonia would be much richer than it is right now. It would see its GDP rise and its levels of employment, and would improve its debt levels, its pensions and its social services.

This argument is expounded by – albeit with a very wide range of scenarios and concrete figures – a group of economists known as the Wilson Collective; many of the authors of the book Questions and answers about the economic impact of independence (Preguntes i respostes sobre l'impacte econòmic de la independència (Col.legi d’Economistes, 2014)); and issue 2016/1 of the Revista de Catalunya.

But a dark scenario emerges from this position. The Economy Ministry guarantees that secession would reduce GDP by 25% to 30%, costing as much as €63 billion. A separate study from the Foreign Ministry puts the negative impact for Catalonia at nearly €37 billion, close to 19% of its GDP (Consequences of a hypothetical independence for Catalonia, 17/2/2014).

Between a glorious scenario and a catastrophic one, the data and comparative studies indicate that Catalonia would face a serious crisis (one that would also affect Spain as a whole), likely nearing that caused by the Great Recession, which saw Spanish wealth, as measured by GDP, fall by 9.2% between 2008 and 2013.

Some international comparisons can offer us clues, although their contexts differ. Sticking just to the impact on GDP of the reduction and increased cost of internal commerce, the fifth official British study on the impact of independence on Scotland calculated that the nation would lose 4% of its GDP – that translated to the size of Catalonia would mean a loss of 3%, the Revista de Catalunya admits.

The precedent of the partition of Czechoslovakia (1993) disallows any minimizing of the commercial downturn of breakups (even when they are agreed, as that one was). From then until 2011, Czech exports to Slovakia fell from 22% to 9%, and those coming the other way from 42% to 15% (La fábrica de España, EL PAÍS, 22/11/2012). And the separation of Slovenia saw its total exports withdraw 23.5% in 1992, and 5.5% of its GDP, according a study by the Barcelona Chamber of Commerce (El sector empresarial a Catalunya i Espanya, 5/6/2014).

That report, which is less militant than its official counterparts, calculates that, just due to the effect of a fall in trade, Catalan GDP could drop as much as 5.7% (and a minimum of 1.1%), while the negative effect of Catalan secession would reach a maximum negative 1.4%.

Among other reasons, this would be because Catalonia’s dependence on exports to the Spanish market, close to a third of the total, is much greater than the inverse; and because its positive balance (€22.685 billion in 2011) compensates the negative Catalan trade balance abroad (€15.325 billion).

It is clear that an adverse impact of 5.7 points (or of three points in the case of the comparison with Scotland) is not comparable to the nine points lost by the Spanish economy during the Great Recession.

But it must be pointed out that these figures are limited to the strict effects of commercial progress, the element that has been thus far most explored. And what’s more, in the case of Catalonia the estimates are limited to a scenario whereby the separation goes without a hitch, without any interruptions to its membership of the EU, something that has been denied by the Treaties and by member states.

Other adverse flows must be added: those of foreign investment (up to now positive), tourism, ease of access to foreign credit, and the aforementioned loss of positive effects of belonging to a large, integrated economic space. Catalonia could then be economically viable on its own (Uruguay is, for example). But far from immediately turning into a paradise – perhaps also a lethal inferno – it would result in an eventful and dramatic purgatory.

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Former Catalan premier Artur Mas signs the decree green-lighting the non-binding independence referendum held in Catalonia in September 2014.
Former Catalan premier Artur Mas signs the decree green-lighting the non-binding independence referendum held in Catalonia in September 2014. AFP

7. WE HAVE THE RIGHT TO SECEDE

It is false that, as what the suspended referendum law says in its explanatory statements, Catalonia has “the inalienable and indefeasible right to self-determination” and that this has been recognized by international law. The contrary is true, rather.

The United Nations’ own norms (the foundational charter of 1945, General Assembly Resolutions 1514 and 2625, International Covenant on Civil Rights) recognize the right to self-determination but do so in an internal way: as a right for citizens to express themselves politically, vote in democratic elections and participate in institutions.

Only in very specific cases can this right become an external form of self-determination, meaning secession. These cases are limited to the particular situation of peoples under “colonial or other forms of alien domination or foreign occupation.” (UN Resolution 50/6)

But the resolution goes on to say that “this shall not be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind.”

In other words, democracies.

And in this particular case, the Spanish democracy was built with decisive contributions from the Catalans, beginning with their participation in drafting the 1978 Constitution. Catalans have participated in 38 elections at the local, regional, national and European level, and they have voted in four legal referendums (on the Constitution, on both regional Estatuts in 1979 and 2006, and on the EU’s Constitutional Treaty). They are not under colonial rule, and they do not live in a dictatorship or a military regime.

In even more exceptional cases there is talk about “remedial secession” as a last resort to end a massive violation of human rights and democratic freedoms. But these extreme cases must be greenlighted by the UN Security Council, as was the case with Kosovo.

Other states have emerged out of the disintegration or implosion of larger ones (such as the USSR and Yugoslavia), but that does not automatically entail a generic right to secession. Scotland, Canada and Montenegro all held referendums on self-determination, but always within the bounds of their own national legislations and with authorization from the central government, never unilaterally. South Sudan is a similar case.

The Spanish Constitution does not contemplate a territory’s right to break away – nor does any other constitution in Europe, or indeed, practically any other country in the world. A change to that status would require constitutional reform via a method requiring approval by two-thirds of Congress and the Senate; the reform would then have to be put to a national referendum, where all Spaniards would have a say in the matter. There is a possibility for the government to directly consult the citizens on “matters of particular import,” but this kind of consultation is non-binding, as per section 92 of the Spanish Constitution.

Other referendums that violated similar constitutional rules, such as the one in Ukraine over Crimean secession, have been radically disapproved by the European Council, the UN General Assembly and the Council of Europe’s Venice Commission.

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8. WE WOULDN’T LEAVE THE EU

It is not true to say that an independent Catalonia would continue to form part of the European Union, as the secessionist movement wants.

Since 2004, successive presidents of the European Commission (which is the guardian and interpreter of the Treaties in the first instance), Romano Prodi, Jose Manuel Durão Barroso and Jean-Claude Juncker, have been arguing the same thing, with very little variation in the formulation of the arguments: “If a territory of a member State is no longer part of that State because that territory has become an independent State, the Treaties can no longer be applied to that part of the territory. And the new independent region will become, due to the effect of its independence, a third country.” This new state would have to “request its admission once more” if it wants to be a member.

This definition derives directly from the text of the Treaty on European Union (TEU). Its article 52 mentions, one by one and with its complete name, the 28 member states of the Union. Catalonia does not appear, which means that its affiliation with the European community derives from the fact that it forms part of the Kingdom of Spain. It is not that Catalonia is facing its expulsion from the community club; it would in fact be excluding itself.

But, what is more, the TEU, in its first article (which has a more constitutional character), obliges all members to respect the constitutional order in every member state and their territorial integrity, in the following terms:

“The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security.”

This is not a case of derived or optional legislation, but rather of constitutional order.

As such, in the case that Catalonia should become an independent state and want to join the EU, this would not be automatic, but rather it would have to apply to do so, according to Article 49 of the TEU, and it must be validated by the 28 member states – including Spain, something that would be more than a little complicated, in particular if the separation were unilateral.

But to be a candidate they would have to meet two basic requirements established in that article. The first is to be “a European state,” and the second to be “a state that respects the [democratic] values proclaimed in Article 2,” as the prestigious former European Council legal counsel Jean Claude Piris explained in an article in EL PAÍS (Cataluña y la Unión Europea, EL PAÍS, 29/8/2015).

If these conditions were met, the country would also have to be able to accredit that it constitutes a “European state.” And to constitute a state, international recognition is needed. As Artur Mas admitted on March 25, “if no-one recognizes you, independence is a disaster.”

And the indisputable path for this recognition is membership of the UN. For the UN to accept a new state, the Security Council must first recommend it (among the permanent members of the council with a right to veto is France, a country that is not at all inclined to favor territorial ruptures and sensitized to questions such as Corsica or its own Catalan territories); and later approve it in the General Assembly with a two-thirds majority.

The way these obstacles are being minimized by politicians who insist on the capital role that Catalonia plays in Europe, and how the latter badly needs to hold on to the former, are in stark contrast with the unanimous way in which governments and European institutions oppose fragmentation; it also ignores the problems that this precedent would set for many member states that are suffering from domestic breakaway tensions; and ignores the very foundational objective of the current EU of reconciling Europeans on foundations such as the unaltered maintenance of the internal borders established after the Second World War.

And in the face of an appeal of an attempted “internal expansion” relative to the supposed conservation by Catalans of their condition as European citizens, the Commission has left well established that only those people who have nationality from a member State are citizens of the EU, according to article 20 of the TEU (C(2022) 3689 final, 30/5/2012).

The consolation prize would be staying in the euro. “In any case, Catalonia is going to be in the euro… there are countries that are not in the EU and have the euro, Catalonia would have it if it wanted it,” said Mas in September 2013. That is not the case. Being in the euro is to form part of the monetary union, and only member states of the EU are allowed in.

The next best thing would be to use the euro: create their own currency and peg it to the European euro, but this mechanism, the currency board, requires a unanimous prior agreement (art. 219.1 of the TEU) from the 28 member states. And while this is the system used by Monaco, San Marino, the Vatican and Andorra, “it is not adequate for diversified economies,” according to the IMF. The next best thing after the next best thing would be to use it with no agreement, something that the experts consider to be contrary to the Treaty. And it would also deprive Catalan banks of the protection of the massive financing offered by the ECB, which in the best of cases (counting on affiliates in the euro zone), could only allocate symbolic support, such as that awarded to third countries.

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9. THE OCTOBER 1 REFERENDUM IS LEGAL

The Catalan government claims that the vote it has called for October 1 is legal. And the deputy premier, Oriol Junqueras, takes things to an even higher level when he adds that the Criminal Code does not prohibit voting. This is a misleading statement.

For an electoral vote to be legal, it has to be allowed by the law. And the Spanish Constitution awards exclusive referendum-calling powers on “matters of particular import” to Spanish parliament and the central government. The October 1 ballot has been unilaterally called by a Catalan government decree.

Both laws that were fast-tracked through the Catalan parliament on September 6 and 8 to provide a legal framework for the referendum and for the transition to an independent republic are illegal.

First, they are illegal from a procedural standpoint. They were voted through without the two-thirds majority that the Catalan charter, the Estatut, establishes for reform; the bills’ passage also skipped an essential step in Catalan legislative procedure: a request for oversight by the Consell de Garanties Estatutàries, the regional equivalent of the Constitutional Court, and a body that makes sure that regional bills conform to the law.

This Consell had already issued several decisions against various legal elements of the secession process. On September 6, it issued a new one that was duly ignored. Catalan parliament lawyers also warned about the concomitant illegality of the procedure employed by the separatist majority in the chamber to push the bills through while annulling essential guarantees in the lawmaking process.

But the referendum law is also illegal in content. An ordinary law cannot self-proclaim that it will “prevail hierarchically” over the higher-ranking regional Estatut and national Constitution.

The law also infringes all the main guidelines established by the Council of Europe’s Venice Commission, which says that election legislation must be in place a year before the referendum date (in this case, it has been under a month); that there must first be “serious negotiations among all the actors;” or that no public funds may be used by authorities for campaign purposes (which the Catalan public broadcaster is doing).

As for the law paving the way for a transition to an independent republic, and meant to serve as an interim constitution, it would go into effect two days after the ballot and without being voted on in a constitutional referendum. It sketches out the outline of an authoritarian state that would end the rule of law, cancelling the separation of powers and nixing the independence of the judiciary. The head of the Supreme Court would be appointed by the president of the Catalan republic (who would also be its prime minister); all judicial appointments would be made by a mixed committee where the government would enjoy an absolute majority. All of which is in sync with the dictatorial evolution of Poland.

And the parliament that would emerge, though in theory imbued with constituent powers, would in fact lack them, as it would be bound by an earlier mandate dictated by “a citizen participatory process” predictably dominated by secessionist agitators.

These laws approving the sovereignty of Catalonia are fundamentally illegal because the Spanish Constitution clearly states in Section 1.2 that sovereignty resides “exclusively and indivisibly” with the Spanish people. The Constitutional Court has made this point clear in its rulings, as well as the fact that the only possible referendum is the one set out in the Constitution, requiring participation by all Spaniards.

A series of court decisions have detailed this doctrine, evidencing that the referendum and its framework are also illegal by virtue of case law.

And while it is obvious that the Criminal Code does not prohibit voting, it is equally obvious that it does punish disobedience, officials who deliberately make unlawful decisions, and the misuse of public funds in legally banned electoral processes.

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10. VOTING IS ALWAYS DEMOCRATIC

“Referendum is democracy,” is the main slogan of the secessionist campaign for the October 1 referendum, and which is used with a number of variations.

Formulated as such, with no nuances, the principle is misleading and leads to errors. It is true that the use of referendums as mechanisms of “direct democracy” can constitute a good complement to representative democracy. And this frequently is the case in some very specific countries, ones that are small, with very intense local politics and a great tradition (constitutionalized) in votes on any subject, as is the case with Switzerland.

But referendums have also been used by the worst dictatorships. The Nazi occupiers of Austria ratified the Third Reich’s Anchluss through this route, on April 10, 1938. Among other details, the “Yes” box doubled the size of the no. Result: 99.73% in favor.

The Franco regime used the same means with its Organic State Law of December 13, 1966, without the freedom to disagree, nor the existence of parties, nor any kind of democratic rights. Result: 95% of favorable votes, which at some polling stations exceeded 100% of the electorate.

What’s more, arguing that the only solution to the (highly improvable) fit of Catalonia in Spain is a referendum on independence has no sense: this demand was not in the electoral manifesto of the main pro-secession party, Junts pel Sí, given that the positive result of the unofficial referendum held on November 9, 2014 was valid. There was no vote, in that case, on any kind of referendum. There is, in effect, no electoral mandate for one to be held, but rather just an attempt to capture voters for other parties and those who are in favor of an agreed consultation (this is not it).

For a referendum to be democratic it must be celebrated within a democratic regime and respecting the constitutional framework. “Celebrating a referendum that is unconstitutional contravenes in all cases the European standards,” the European Council ruled (Venice Commission, which supervises all referendums in the continent) in the case of the separatist referendum of Crimea in respect of Ukraine (ruling 762/2014).

And the use of referendums should “comply with the legal system as a whole, especially the procedural rules […].” “The referendums can not be held if the Constitution or a law does not authorize it,” the organism’s Code of Good Practices states (document 371/2006). And article 2 of the Ukrainian Constitution establishes that its sovereignty “extends over its entire territory,” which is a “single state” and that its border is “indivisible and inviolable.”

The president of the Venice Commission warned on June 2 in the letter to the Generalitat that any referendum must be agreed with the government and carried out “in full compliance with the Constitution,” something that will not happen in this case because the Catalan referendum law (which has been suspended by the Constitutional Court) is above and on the margins of the Constitution, and the region’s governing Estatut.

As such it is false to say that the exclusion of a referendum in affairs of sovereignty is characteristic of “low-quality democracies,” as the regional government claims. All advanced economies in continental Europe exclude the calling of secession referendums. The two most recent episodes in this respect are Italy and Germany.

The Italian Constitutional Court (sentence from 29/4/2015) ruled that the sovereignty of all citizens “is a value of the united Republic that no reform can change without destroying the very identity of Italy.” And that attacking this imperative implicates “institutional subversion that is radically incompatible with the fundamental principles of unity and indivisibility of the Republic.” And that is because “the unity of the Republic is one of the elements that is so essential to constitutional order that it is even removed from the power or revision of the Constitution.” A restriction that is not applicable in Spain, given that all articles of its Constitution can be revised.

In a similar sense and in a much more concise manner, the German Constitutional Court refused a request for an independence referendum for Bavaria on December 16, 2016, given that there is no “space for secessionist aspirations in a federated state in the framework of the Constitution: they violate the constitutional order.” And in the Federal Republic, “as a national State whose constituent power resides with the German people, federated States are not the lords and masters of the Constitution.”

As such secessionist referendums are not (European) democracy.

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English version by Susana Urra and Simon Hunter.

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