The trial of strength taking place in Catalonia over the planned independence referendum, which violates both the Spanish Constitution and the region’s own statute, is the fruit of a political wager, one that stems from a long history of serious political disagreement.
But it is also illustrated by juridical intervention, by laws, by apparent laws, by regulations, and by the application of rules. Because what this is all about – in Catalonia and to a certain extent in all of Spain – is whether the rule of law and democratically agreed-to rules can survive, or whether their opposite does.
Every juridical question, every measure that is executed and every rule, court decision or judicial measure that is applied, all have a very notable political impact
That is why every juridical question, every measure that is executed and every rule, court decision or judicial measure that is applied, all have a very notable political impact. After a long and unacceptable delay, the Catalan government finally published in its official gazette the legal decisions of the Constitutional Court suspending the laws facilitating the referendum and a transition to an independent republic that were recently fast-tracked through the regional parliament; the Catalan government also published the prohibition to observe said laws, not to mention the corresponding penalties for those who should disobey such instructions.
As such, the fallacious excuse bandied about by some, holding that these Constitutional Court decisions had not entered into force given that they had not been officially published or received, no longer has any credibility – if it ever did.
But there is more. By following the orders to publish these decisions by the top court, the regional government in Catalonia is automatically recognizing them, thus submitting to the authority of the tribunal that issued them. And under the juridical principle by which no one – not least an administration – can act against their own administrative acts, the regional government is obliged – self-obliged, if you will – to comply with them. That is to say, to officially cancel all of the official events, interventions and measures leading towards the planned referendum.
If an administration no longer has any authority, it is susceptible to being disobeyed
If this does not happen, it will show that the regional government is not only failing to observe legitimate superior instructions, but is also disobeying itself, reaching new heights of discredit. And as all of the country’s judges’ associations have underscored, if an administration no longer has any authority, it is susceptible to being disobeyed.
Considering that illegal rallies continue to be held in Catalonia, that the electoral board continues to issue instructions from some secret location, and that the online propaganda campaign continues to challenge the rule of law, this reflection could seem naïve at this stage of the game. It would be, if nothing more than these technicalities were being utilized to demand compliance with the law. But democracy is a system of complex decision-making, in which measures of force used to defend it from those who would see it destroyed should be accompanied by other, less emphatic steps which serve as a voice of reason. Guided always by the principle that any measures taken by democratic powers must follow the mandate of not causing more harm than they are preventing, today it is convenient to note that the Generalitat is violating its own Official Gazette, and tomorrow it will be necessary to force it to comply with all the necessary coercive force.
English version by Simon Hunter.