In Scotland and Quebec the referendum was officially called with a wider margin of time
ALEIX MOLDES / NÚRIA ORRIOLS. ARA 03/09/2017
The big crash is to come on Wednesday next: the separatist majority of Junts pel Sí and CUP will pass the Referendum law in Parliament and the Government is expected to formally convene on 1-O the same day, less than a month before the Referendum. The next day will be the turn of the Legal Transition law. It will also be passed with the opposition of the opposition groups, and the suspension of the Constitutional Court (TC) will be immediate. From here the conflict of legitimacy between the Generalitat and the state institutions will come into its own. Looking ahead to next week’s schedule, to what extent is the Catalan case resembling other self-determination processes? One of the main criticisms of the opposition is that sovereignty has chosen an express formula to process the laws with hardly any parliamentary debate and a few days before the date fixed for the Referendum. Although, at the same time, Cs, the PSC and the PP have repeated that no step can be taken towards a referendum prohibited by the TC.
Several experts consulted by ARA agree that the case of Catalonia is unique because it wants to carry out a binding referendum without the endorsement or tolerance of the State, a clear difference with the cases of Scottish and Quebec. And this is one of the reasons that led JxSí and the CUP to shorten the deadlines. In Scotland, the referendum agreement with the United Kingdom was signed on October 15, 2012, two years before the vote. The election campaign lasted 16 weeks and a period of 18 months was established to negotiate independence in the event of a victory of yes. In Quebec, the law governing the consultation was approved in June 1995, four months before the referendum. And Montenegro was summoned on March 2, 2006 to end up voting on May 21 of the same year. The main difference with the Catalan case is that in these three cases the referendum was agreed upon, tolerated by the state or had the endorsement of the international community. Joan Esculies, an associate professor at the UOC, explains to ARA that in the agreed consultations, “all the parties know what will happen” during the parliamentary process, in the campaign and how the result will be interpreted. “In Catalonia it is about voting, and if the yeas vote wins, independence will be proclaimed as soon as possible to institutionalize the conflict,” he explains. The “lack of political will” to negotiate by the Spanish government creates the need to appeal to a higher instance – Europe. To do this, Esculies believes that the Government “is in a hurry” to achieve an important negotiation letter: that of a high participation in 1-O that may force the State to agree a binding consultation. This, however, is not what the Government expects, because the referendum law defines 1-O as binding to declare independence. “Proclaiming independence does not cost much, but then the reigns of the state must be taken”, he warns.
UOC constitutionalist Enoch Albertí points out that, unlike what happened in Scotland and, to a lesser extent, in Quebec, the Spanish government has refused to negotiate a change in the Constitution that implies the possibility of a referendum on independence. For Albertí, one of the most noteworthy facts is that the Constitutional Court has prohibited the Parliament from pushing forward proposals to exercise self-determination. According to him, it is key to understand that JxSí and the CUP have decided to process the law of the referendum on the express road, in one day and less than one month after the vote.
In Slovenia, despite differences, the deadlines were also tight. Lawyer Ana Stanic, in her report Lessons on the case of Slovenian independence, explains that the campaign began at the end of November 1990, that the law that protected the referendum was passed by Parliament on December 6 and that the voting took place on the 23rd.
Legitimacy and unilateralism
Although the Catalan case is not the only example of opting for the express route, UPU’s Philosophy Professor of Law, Josep Lluís Martí, questions its legitimacy. In a conversation with ARA he says that referendum already implies a break in the constitutional order. In a recent article in the German blog on Constitutional Law, Verfassungsblog, he argues that the referendum law is a break with the State without there being any direct statement by the citizens beforehand. In his view, the norm “is a constitutional coup” because it has the will to establish a new ordinance parallel to the Spanish one which is at the top of the legal system. To do this, he considers that the majority obtained on 27-S by JxSí and the CUP is not enough, because they did not reach 50% of the votes.
Photograph: a queue to vote in the 9-N polls 2014 at the Barcelona Official School of Languages in Barcelona V-Sants. / RUTH MARIGOT