The Catalan Question – When Law meets Justice

The Catalan Question – When Law meets Justice

The Catalan Question – When Law meets Justice

‘An unjust law is no law at all’

Martin Luther

Only several weeks ago, on 18 September 2014, Europe could observe an astonishing case of direct democracy – the people of Scotland, 5,3 million, went to the ballot boxes to decide on whether or not to stay part of the United Kingdom. Running up to these, there had been long debates about whether such a vote would be rightful, who should be allowed to vote in it, and how England and the European Union would treat Scotland in the case of it becoming independent. However, amongst all these questions that were asked, there was one fact which was most important: that Scotland actually had the right to vote on its status.

If we look around in Europe, we can see that this can not be taken for granted. The latest example for this can be found in Spain. The inhabitants of Catalonia, which since a long time are trying to reach more autonomy from Madrid, have in several polls and manifestations made clear that they wish the right to decide on the relationship between Catalonia and Spain. So when the Spanish government declared itself unwilling to give them the official right to hold a referendum, they decided to take it into their own hands. On the 27 September 2014, the Catalan president Artur Mas signed a document, backed by a broad coalition of Catalan parties, which formally called for an independence referendum to be held on the 9 November 2014. Just two days later, Spain declared said referendum illegal and void – it ran contrary to the country’s constitution. The Spanish constitution of 1978, introduced after the fall of the Franco regime, refers of the “indissoluble unity of the Spanish nation”, a quote which, according to Spain’s governing conservative Partido Popular, leaves no room for discussion. Spain has to stay one, no matter at what price. Yet, while most conservatives (although also others) seem to take this article as a self-evident and eternal truth, one would do well to reflect on whether this one phrase should really be the most important guideline concerning the Catalan question.

First of all, it is crucial to recall that the state, and therefore all state issued legislation, receives his legitimacy and power from the people, not the other way around. If a decisive part of a population feels misrepresented or even discriminated against by not only a single government, but an entire state, can this state still claim to represent the rights of said group? It cannot. A state, even if backed by a majority, has no right to take away the rights of minority, no matter whether through outright discrimination or under the pretext of national unity.

Furthermore, we should face the fact that constitutions are neither infallible, nor made for eternity. Instead, they can and should be open to changes. While the constitution has a special status in the USA, due to its crucial function in the creation of their nation, other states such as France have shown that you can keep the state and simply change the constitution without major problems. It is better to accept the deficiencies of a constitution and cure them instead of trying to suppress them. And this is exactly what would be necessary in Spain.

Lastly, if one looks at the circumstances under which the current Spanish constitution came into existence, it seems all the more likely that it is time for a revision. It was introduced in 1978, shortly after the authoritarian Franco regime had fallen, a dictatorship under which the Catalan language was mostly forbidden, and the region deprived of all its rights to self-governing. The new constitution then, although creating a system far superior to the previous one, was merely a lukewarm compromise. It had to bring together old fascists, left radicalists, liberals and conservatives – and was consequently vague in its details. Today, two generations after the end of the Franco regime, it might be time for Spain’s younger generations to sit together and decide how a modern Spain should look like.

In the long run, Spain is gaining nothing by pointing towards the constitution each time the topic of Catalan or Basque separatism is brought up. It is understandable that the political elite in Madrid is looking for ways to keep its most prosperous region in the country, and that they try to use the constitution to do so. However, they have to be aware that this is nothing that can solve the situation forever. While Catalonia still shows respect for Spanish laws at the moment, this might change one day when their frustrations continues to grow. Catalan citizens want to have a voice on their future, and if Madrid shows no willingness to engage in fair and open negotiations, they will sooner or later call the shots without consulting Madrid. And if this point is reached, it might be too late for Spain to start negotiating. After the planned referendum was declared illegal, Catalonia will at least hold what it calls a consultative vote – in the hope to keep the pressure on Madrid high.

By Leopold Traugott