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It’s not independence, it’s a violation of the law

The bill regulating the Catalan independence referendum is illegal from beginning to end

Xavier Vidal-Folch

From its title down to its very last section, Catalonia’s bill for a referendum on self-determination, which the regional parliament is set to pass on Wednesday through a fast-track procedure, is illegal according to international law.

A pro-independence flag on a Barcelona street.
A pro-independence flag on a Barcelona street.ALBERT GEA (REUTERS)

There is not one iota of lawfulness in it. It violates United Nations resolutions proclaiming the right to self-determination and supporting the secession of countries under colonial rule or foreign domination. It seeks to find backing in an advisory opinion issued by the International Court of Justice in The Hague, which validated Kosovo’s unilateral declaration of independence because it was allowed by its Constitutional Framework – the opposite of what is happening in this case. And it violates all substantive recommendations by the Council of Europe’s Venice Commission, an agency of reference that provides legal advice on constitutional matters and referendums.

The Catalan bill repeatedly and systematically incurs in legal violations, from beginning to end.

It violates United Nations resolutions proclaiming the right to self-determination

The first violation is encapsulated in Section 1 of the bill, which says that once it becomes law, it will “regulate the holding of the referendum on self-determination.” As per international standards, this role cannot be performed by an ordinary law that violates the country’s higher constitutional and statutory set of laws.

“The use of referendums must comply with the legal system as a whole, and especially the procedural rules. In particular, referendums cannot be held if the Constitution or a statute in conformity with the Constitution does not provide for them, for example where the text submitted to a referendum is a matter for Parliament’s exclusive jurisdiction,” says the Venice Commission in its Code of Good Practices for Referendums (Section 3.1).

The last violation is the bill’s presumed effective date, less than a month before the referendum’s scheduled date of October 1. This runs counter to another item in the Venice code, which notes that “the fundamental aspects of referendum law should not be open to amendment less than one year before a referendum.” (Section 2.2 b))

The bill twists the Venice code of good practices

Everything in between these two items also flies in the face of the law: the unconstitutional attribution of sovereignty to the Catalan people (Section 3 of the bill); the attack against the legal hierarchy, since the bill proclaims that it will “prevail” over Catalonia’s own regional charter – the Estatut – and over the Spanish Constitution (Section 3.2); or the “binding” nature of the outcome (Section 1), in which a majority of affirmative votes will “imply independence” (Section 4.4) despite the fact that referendums on transcendental issues cannot be binding, as per Section 92 of the Spanish Constitution.

The bill twists the Venice code of good practices, which says that the Constitution or the law must clearly stipulate whether referendums are legally binding or merely consultative in nature.

The administrative body that would be in charge of the referendum, the Sindicatura Electoral de Catalunya, is also illegal as its members would be elected by an absolute majority in the regional parliament, meaning 69 seats (Section 19), instead of by two-thirds of the chamber, which would require 90 seats. Yet 90 votes is the minimum threshold for reforming the regional statute and to get electoral laws passed. Catalonia does not have an electoral law precisely because it has been unable to reach such a level of consensus in the four decades that its parliament has been in operation.

The Venice Commission warns against the unlawful practice of changing majorities through the back door

The Venice Commission also warns against the unlawful practice of changing majorities through the back door: it specifically recommends avoiding the use of referendums to undermine the legitimacy of representative institutions. It urges “serious negotiations among all actors” and cautions against using simple majorities in an abusive manner: “Political parties or supporters and opponents of the proposal put to the vote must be equally represented on electoral commissions” that control the body in charge or organizing the referendum” (Section 2, 3.1.e).

For further details, it is necessary to see how the bill, soon to be a law, develops. But the Venice group warns against an improvised voter census: “Electoral registers must be permanent or refer to a register that is constantly updated,” says the code in section 1.2. It also states that the government should, it not act neutrally, at least avoid excessive unilateral campaigning. “Public authorities must not influence the outcome of the vote by excessive, one-sided campaigning. The use of public funds by the authorities for campaigning purposes must be prohibited (Section 3.1).

And then there is the matter of the quorum (turn-out, minimum percentage). The Venice code does not advise them for normal consultations, but this rejection does not extend to secessionist referendums (if these are allowed by the Constitution), as was the case in Montenegro, where the European body supported a quorum of 50% of the census and a qualified majority of affirmative votes of between 55% and 65%, which was finally set at 55%.

For all of the above reasons, it is not surprising that Venice Commission President Gianni Buquicchio reminded the Catalan government, in a letter dated June 2, that the body he presides “stresses” the “need for any referendum to be carried out in full compliance with the Constitution and with applicable law,” such as Catalonia’s own charter of rights, the Estatut.

English version by Susana Urra.

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