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by Jenni Davidson
06 October 2017
Constitutional crisis: lessons from the Catalan referendum

Constitutional crisis: lessons from the Catalan referendum

Catalonian flag - Image credit: Press Association

For those who are in favour of the UK having a written constitution, the events of this week might prompt them to think twice about binding the country forever to a set of rules that are virtually impossible to change to fit future circumstances.

One of those was the tragic shooting of hundreds of concert-goers in Las Vegas, made possible by lax gun laws in Nevada, underpinned by a two centuries’ old US constitution giving everyone a right to bear arms.

The other constitutional issue was, of course, the Catalan referendum on independence on 1 October.

The vote had been ruled unconstitutional under Spanish law, with the much more recent Spanish constitution, dating from 1978, stating that Spain is indivisible.

The only way for a legal referendum to be held would be for the whole of Spain to vote through a change to the constitution.

Spanish prime minister Mariano Rajoy said: “This illegal project has no future, has no place in a democratic state such as ours.

“It lacks any international support, it lacks any legal protection, and above all, it lacks the support of the majority of Catalans.”

The latter point might be in dispute, with up to 85 per cent in Catalonia, including those opposed to independence, reported to have been in favour of settling the issue through a referendum, although the difficulty of the legal and constitutional situation is indisputable.

However, the images of the Spanish state police response to last Sunday’s vote have caused outrage, worldwide, across the political spectrum.

The pictures were stark and horrifying, of Catalan firefighters facing off with Spanish police, of voters being dragged by their hair, pulled down stairs, kicked, hit over the head with batons, people dripping with blood from head wounds, and unarmed, peaceful protesters being shot with rubber bullets.

More than 850 people were injured.

Here, politicians from all parties took to social media to condemn Spanish state actions. SNP MSP Sandra White tabled a motion in parliament last week condemning the actions of the Spanish police.

She believes that Spain had breached Article 2 of the Lisbon Treaty, which refers to respect for dignity, freedom, democracy, equality and minorities, and she called on EU member states to invoke Article 7, which outlines the possible EU response to a breach of Article 2.

That could include suspending the voting rights of the state in question.

Conservative Jackson Carlaw was also unequivocal in his criticism of the Spanish reaction, stating that “there was clearly little rational about it” and “whatever intentions they might have had, their actions will prove to have been wholly counterproductive”, adding that the situation was “potentially deeply damaging to the reputation of Spain”.

The UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, on Monday called for the Spanish government to accept requests for UN human rights experts to visit and Amnesty International has confirmed “dangerous” and “excessive” use of force.

But the wording from the UK Government was notable in its support for Spain. Boris Johnson tweeted the official Foreign Office statement: “The Catalonian referendum is a matter for the Spanish govt & people. Imp that Spanish constitution respected & the rule of law upheld.

“Spain is a close ally and a good friend, whose strength and unity matters to the UK.” Nicola Sturgeon called the FO response “shamefully weak”.

The European Commission was clear in its support for Spain too. First Vice President Frans Timmermans told the European Parliament: “None of us want to see violence in our societies. However it is a duty for any government to uphold the law, and this sometimes does require the proportionate use of force.”

An official statement reiterated that if Catalonia became independent, it would find itself outside the EU and said it was a time “for unity and stability, not divisiveness and fragmentation”.

That unity looks unlikely, though, as following the vote, Catalan president Carles Puigdemont declared that independence would be announced within days.

He also warned that any attempt by Madrid to take direct control of Catalonia would be “an error which changes everything”.

And matters were only made worse by the king of Spain, who made a speech in support of Spanish state intervention, saying it was the responsibility of “legitimate state powers” to ensure constitutional order and committing to the “unity and permanence” Spain, with no concession at all given to Catalan nationalists.

In Scotland, of course, all the arguments on both sides sound familiar, from the accusations of biased coverage to the threats of being left outside the EU, but fortunately, the violence does not.

It is not the constitutional question itself, but Spain’s handling of the attempt to hold a vote on the issue, that has attracted international censure and there it could have learned from the UK.

For all that the constitutional question continues to drive argument in the Scottish Parliament’s chamber and online, it is a matter for discussion only.

And had the Scottish Government decided to declare a wildcat second referendum following Brexit without UK Government approval, it’s hard to imagine Theresa May sending in 6,000 police from England and Wales to prevent it.

Had Brexit not happened, it is likely that a second independence referendum would have been off the table for many years to come.

Barring a sudden upsurge in support or a similarly dramatic change in circumstances, there would have been no reason for anyone to be planning a re-run of 2014 for at least a decade or so.

The question is why the Spanish government did not allow a referendum on independence to go ahead in Catalonia.

Recent opinion polls suggested that only around 41 per cent of Catalonian residents supported independence.

Pro-independence parties achieved 48 per cent of the vote at the most recent Catalan elections. While lessons learned from UK referendum show that you can never guarantee a result, there was a high chance a free vote would have opted for continued unity.

And even if it didn’t, Spain could simply have pointed to the poll having no legal status, particularly in the case of a close result or poor turnout.

It is difficult to know what effect repression has had on support for Catalonian independence, but by opposing the referendum so violently, Spain ensured that the proportion of the vote for independence would be sky high, with those who oppose it less likely to break through police lines to cast a vote.

Less than a 50 per cent turnout would in normal circumstances have looked unconvincing, but where people were actively prevented from voting and ballot boxes were seized, a poor turnout reflects badly only on those who prevented a vote.

According to the Catalan government, the preliminary results of last week’s poll suggested that 90 per cent voted for independence on a turnout of 42.5 per cent based on the countable votes from ballot boxes that were not confiscated.

That equates to 38.25 per cent of the entire electorate, broadly similar to the 37.44 per cent of the UK electorate who voted for Brexit.

And so, having attempted to prevent the vote and failed, what options does President Rajoy have left?

Fewer than before. He could belatedly agree to talks with the Catalan state authorities, but that doesn’t seem likely, and it would be much harder after the violent confrontations. He could hope for the EU to intervene and mediate talks. Again, unlikely.

He could resign and leave it for someone else to sort out. Maybe. Or he could react to a unilateral declaration of Catalan independence by sending in police and troops, arresting Catalan politicians and asserting direct rule. Almost certain to end badly.

Lessons learned from recent European history should warn against creating a situation where a group of people feel there are no democratic solutions open to them.

We have seen that in Northern Ireland, in the former Yugoslavia and in Spain itself with Basque separatists.

While the Catalan independence movement has been peaceful so far, a complete blocking of any democratic process could backfire very badly.

Speaking on the BBC’s Sunday Politics before the referendum, Glasgow University professor of Hispanic studies Vicente Pérez de León warned: “This [referendum situation] should have been anticipated before and avoided.

“But at some point if a region of Spain wants to split and become an independent country, basically in the past that was solved by war and things like that, so this is a serious situation. Really.”

By allowing the people to vote freely and fairly in Scotland, the issue was settled – at least for a time. By attempting – and failing – Spain may have lost Catalonia – or worse, set the country on course to further violence.

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