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Post Catalonia Referendum, Constitutionality, and Election Standards
Created by John Eipper on 10/11/17 9:11 AM

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Catalonia Referendum, Constitutionality, and Election Standards (Angel Vinas, Belgium, 10/11/17 9:11 am)

Such as things stand at present, I fear we are in for a long discussion on Catalonia. It will be fruitless. The dice have started rolling. We can say something about the past; the future is cloudy.

I agree with José Ignacio Soler (8 October), and will add the following. The referendum issue is important because the Catalan Government is using it to support its claim to legitimacy. Let me pinpoint something which remains a mystery to me. The Catalan Government and the Parliament have repeatedly proclaimed that an independent Catalonia will remain within the EU (this is pure fantasy, but this isn't my line of reasoning).

If they really believe that, it stands to reason that the referendum should have complied with generally accepted standards of supervision in Europe. The Commission of Venice of the Council of Europe (nothing to do with the EU) considered that the referendum wouldn't comply with them. Obviously, the Catalan Government couldn't appeal to an electoral supervision by the EU itself.

The abandonment of any kind of control by these two organizations should have led to the conclusion that the outcome would lack legitimacy. And this is what has happened.

Nobody but the secessionists believes that the referendum had any value as such. This is why I called it the biggest pucherazo in Spanish history. Some guys have now taken upon themselves to put in foreign languages the legal situation as seen by a number of Spanish experts in constitutional law.  Please refer to the Manifest by Spanish Constitutional Law professors in favour of respecting the Constitution:


I don´t want to toot my own horn, but I feel a bit strongly about it. After all it was Yours Truly who started polishing and updating the EU policies in electoral observation more than fifteen years ago.

JE comments:  Would the Venice Commission have sent observers if Catalonia had asked?  The constitutional question admits no ambiguity:  Spain's constitution did not permit the Referendum.  Yet Catalonia's separatists argue that the constitution is unfair, and was written by Francoist holdovers to serve their own interests. 

I have yet to see an answer to this question:  Why wasn't Catalonia granted the same privilege Scotland received when it voted on independence?  To answer that the "constitution disallows it" is not fully satisfactory.

Please toot your horn, Ángel!  Many of us on WAIS would be fascinated to learn more about your work with electoral rules and observation.

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  • Why Catalonia and Scotland Referenda Were Different (Jose Manuel de Prada, Spain 10/12/17 5:10 AM)
    JE asked on October 11th: "Why wasn't Catalonia granted the same privilege Scotland received when it voted on independence?"

    Well, the peculiar "unwritten" Constitution of the UK grants it more flexibility for such arrangements than is the case for a written constitution such as a Spanish one.

    Reforming our fundamental law is no easy matter and requires a consensus that was impossible to achieve when all this began.

    (Although yesterday Mr. Rajoy announced that he and the leader of the opposition had agreed to start such a process of reform.)

    Then, as far as I know, the Scottish nationalists did not blackmail London into agreeing to do a referendum, as the Catalan government did.

    The strategy of fait accompli and threats followed by A. Mas and then C. Puigdemont has done little to help the Catalan cause.  Much less their willful disregard for the substantial part of the population that does not want independence.

    (No wonder El País calls Mr. Puigdemont's nationalism "xenophobic.")

    I wonder how David Cameron would have reacted had the SNP adopted such tactics!

    Then, turning to the US, how would the US Federal Government react if one of the bigger states (say, California or Texas) started today a process of secession?  What would happen if such a state threatened to secede unilaterally?  As far as I know, the US Constitution does not allow states to secede, and there was a long and bloody civil war in 1861-1865 when several of them did so unilaterally.

    Would the seceding state claim that the constitution is unfair?  Or consider it "not fully satisfactory," invoking the Constitution to argue against secession?

    (Perhaps the old Texas v. White Supreme Court decision would also be invoked? See: https://en.wikipedia.org/wiki/Texas_v._White )  Does the Federal Government have any legal means to prevent a state from seceding?  Is there something in the US law books equivalent to the Spanish Constitution's Section 155?

    By the way, while looking for information for this post I saw that there is indeed a Texan secession movement, apparently stoked by Russia!



    JE comments:  Yesterday in my Spanish III class we discussed Catalan secession.  Only about 2 of my 15 students were aware of the referendum and subsequent controversy.  When I mentioned the analogy of California hypothetically seceding, some of my students (I suspect they were the Righties) replied with "let 'em go."  Had I cited Texas instead, I'm confident the Lefties would have said "let 'em go."

    Yesterday I characterized the constitutional argument against the Catalonia referendum as "not fully satisfactory."  Several WAISers have responded in chastisement.  First, José Manuel de Prada, and next, José Ignacio Soler.  Ángel Viñas has also replied.

    The NPR news guy last night really butchered Mr Rajoy's name:  "Muh RYE uh-no RAY-joy."  Yuck.  Did anyone else hear it?

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    • Catalonia and Scotland Referenda: No Middle Ground? (Istvan Simon, USA 10/13/17 8:40 AM)
      I much appreciate José Manuel de Prada's somewhat legalistic attempt (12 October) to explain the difference between the Scotland Referendum and the Catalonia referendum, but in my view José Manuel misses the main point of this discussion. As I said before, I have no preference regarding the outcome of these referenda. I am happy either way, if Catalonia becomes independent, and also if it remains in Spain, provided the majority of its population can be persuaded of the wisdom of either outcome.

      The Spanish Constitution forcing Catalonia to remain Spanish no matter what is wrong. Period. So the main issue is not the referendum, but the lack of opportunity for those that desire independence from expressing themselves in an effective and consequential way. If it is true what José Manuel says that the "silent majority" desires Union with Spain, and frankly I doubt that it is true, then the attempt to suppress the referendum on legalistic grounds and with violence was a giant political blunder. A majority that is silent is a majority that has no right to complain. They should have voted in the (supposedly illegal) election so that it would be clear that they are a majority. They did not do so, leaving the impression that the "majority" is in fact a minority.

      Quite apart from deciding whether unionists or independentists are a majority or not, is the fact that neither José Manuel de Prada nor José Ignacio Soler, nor the Spanish government have a good answer to the fact that there is certainly a very large number of Catalans, even if we were to accept their thesis that they are only a minority, who are unhappy with Spain and desire independence. All I have read in WAIS about this from those that support the union with Spain is a demonization of those who believe in independence. This is a self-defeating and ineffective strategy. Our WAISer colleague Jordi Molins is not a socialist, nor do any of the other aspersions that were cast on people for independence in these pages apply to him. So José Manuel and the other WAISers that are for Union with Spain need to address this lack of dialogue and respect for the opposing point of view. Maybe if they try talking to each other rather than casting aspersions not just in WAIS but in Catalonia, the two sides could come back to a common solution acceptable to both. This is not happening, and the result is conflict that perhaps could have been avoided with more intelligent politics in Spain.

      JE comments:  In cases of divorce, I know of no middle ground.  Either you split, or you stay together.  But you can control the amount of acrimony involved.

      The Spanish constitution could indeed be wrong, but it's also the law.  Their are legal processes to change laws.  But often it takes disobedience to jump-start the process.

      Who can update us on the present state of the stand-off between Catalonia and Madrid?  What about Rajoy's 8-day ultimatum?

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      • Secession and Constitutionality (José Ignacio Soler, Venezuela 10/17/17 2:41 PM)

        Istvan Simon wrote on October 13th: "The Spanish Constitution forcing Catalonia to remain Spanish no matter what is wrong. Period."

        This is a very strong and categorical opinion. Respectfully, I would say that Istvan is wrong about this. Period.

        If what Istvan says is true, then all democratic constitutions in the world would be "wrong" in principle, because all of them contain basic principles of sovereignty and territorial integrity.

        But suppose--just suppose!--that the constitutions of the world were to allow any region to claim its independence, assuming of course that it is not ruled by an autocratic government or they are colonies, in which case this claim is certainly natural. Let us suppose that any time when the people feel like it or are promoted by an even small unrepresentative number of citizens, the constitution granted this institutional right. Then, what would stop any other region, in cascade, to ask for the same, and then another and so on, with the likely result of independence or autonomy?

        Is it not true that the state, the nation, the country would be in risk of disappearing very soon as a national entity, being replaced by a multi-state of nationalistic smaller states competing with each other for borders and resources?  Preventing this risk is why in all constitutions such principles of inviolability territorial integrity must exist. Is it not basic social and political logic?

        I might understand the liberal ideological tendency of Itsvan, but the reason for having constitutional provisions to prevent secessionism is fundamental survival logic of any state and nation, and not irrational at all.

        When commenting on Istvan's post, John E asked, "who can update us on the present state of the stand-off between Catalonia and Madrid? What about Rajoy's 8-day ultimatum?"  Unfortunately, the situation seems to have changed little. What is known in the press is that Rajoy has given 5 days to Puigdemont to clarify whether he really declared independence or not, and because the Catalonian president is under high pressure from radicals on his side, he most likely will confirm the independence declaration.  Then, the government must give him 3 more days to offer the opportunity to rectify. The most likely scenario is that they then will apply to the Spanish senate for the suspension of autonomy, under Article 155, and that the senate will authorize it, with the final result a call for general elections shortly after.

        One final comment.  Massoud Malek says in his last post, "Some theories of secession emphasize a general right of secession for any reason, while others emphasize that secession should be considered only to rectify grave injustices (like the case of Catalonia)." I would really hope Massoud will clarify what the "grave injustices" are in the case of Catalonia. I invite him to mention them and to educate us ignorant Spanish about the subject.

        JE comments:  Should any region be coerced to belong to a nation it doesn't want to be in?  Territorial integrity is one of the Westphalian "truths" of nation-states, but shouldn't nations work harder to keep their regions from wanting to leave?  José Ignacio Soler has perhaps identified the central problem of a "let 'em go" free-for-all:  minority regions are never homogeneous, and a minority that secedes and becomes a majority will suddenly have its own disgruntled minorities who'll want to secede.

        José Manuel de Prada has also sent an update on the Catalonia question.  Tune in, first thing tomorrow!

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      • Catalonia Update (Jose Manuel de Prada, Spain 10/18/17 3:22 AM)
        Istvan Simon's comments of October 14th show how successful the Catalonia pro-independence propaganda abroad is proving to be.

        This is helped by the lousy reporting the crisis is receiving in the US, even from such newspapers as the Washington Post and the New York Times, in which simplification and a tendency to romanticize the situation are rife.

        An article trying to explain the back story, remote and recent, of the situation, couldn't be more disastrous.

        However, this piece, written by a Canadian scholar, is quite decent:


        Even our esteemed editor, JE, shows signs of having allowed emotions-based on propaganda get the better of him.  The whole thing is far, far more complex than most people are capable of seeing from abroad.

        Instead of blaming the "silent majority" for its silence, Istvan Simon should ask himself why this mass of people (perhaps indeed a majority, certainly about half the population) has remained relatively inactive in politics in the past few decades.

        He should also make an effort to check the credentials of those who claim to speak for the whole of Catalan society.

        I am too busy now to explain the complex back story of the present crisis, but can at least point to a relevant parallel to convey the frustration and anxiety many here feel about a situation that we feel jeopardizes our future and in the not-too-distant future may even threaten our very physical integrity.

        The example, as I have pointed in other posts, is the US political situation after Donald Trump's victory in the latest presidential elections.

        Does Donald Trump represent the majority of the US population?  Did he tell the truth when campaigning for the presidency?  Is he governing having in mind not only those who voted for him, but the whole of the population as true statesman should?

        I don't know what you think, but for me the answer to all these questions is a rotund NO.

        Well, the same is happening here.

        The pro-independence block does not represent the majority of the population, and in the 2015 regional elections, which initially they described as "plebiscitary," they got only the 47.74 % of the vote.

        As Trump did before, during and after the 2016 election, the pro-independence movement is lying shamelessly to attract supporters (everything is going to be wonderful when Catalonia is independent, we will be in Europe when that happens, the Spanish state is not democratic, etc.).

        As Trump is doing now, the regional government has been governing since 2015 just for their pro-independence constituency.  It has also invested a huge amount of public funds for this sectarian cause.

        Am I demonizing those who believe in independence or treating them with disrespect when saying this?  Certainly not; I am just describing things as they are.

        And part of this reality is that separatist are just treating those who do not think like them as if they just didn't exist.  Can one imagine greater disrespect?

        I don't know what you may think, but as for me, being considered invisible by those in power does not contribute to my peace of mind.

        We are just saying: We are here, we are also Catalans, this is just a scam of which we don't want to be part.

        Because that is what it is: a scam promoted by politicians that, as has been widely proven, for almost 25 years got a 3% "mordida" from all public tenders and that started all this madness in 2012 when things were beginning to look grim for them because of this.

        Sadly, the Spanish government is not at present in the cleverest hands, but I think their basic position is quite reasonable: return to legality and we will talk. No dialogue can exist if you persist in your blackmail.

        This said: the latest about the crisis is that yesterday a judge sent to prison, accused of sedition, the leaders of Omnium Cultural and the ANC (Assemblea Nacional Catalana), the two organizations which, with generous backing from the regional government, have been essential in organizing the whole scam.

        An idiotic move, in my opinion, that only will make things worse.  (Although, you bet, I think the charge of sedition is completely justified!)

        Meanwhile, companies are fleeing Catalonia in droves, and tourist bookings are down by 30%.

        JE comments:  The 3% "mordida" (bribe or "bite") claim, if true, is extremely revealing.  José Manuel, when time permits can you give more details?  Are you talking about Pujol and his clique?

        Might the over-romanticization of the situation stem from the belief that Spain does things, well, romantically?  This was more or less the point of Antonio Muñoz Molina's essay in El País (see Ángel Viñas, 17 October).  If so, Catalonia's separatism from Spain is the most "Spanish" of acts.  I do recognize the irony here.

        Jordi Molins (next) weighs in with the opposite view from Barcelona.

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  • Catalonia and Scotland Referenda Compared (José Ignacio Soler, Venezuela 10/11/17 5:00 PM)
    I confess I was a little surprised by John E's questions. When commenting on Ángel Viñas's post of 11 October, John first asked, "Would the Venice Commission have sent observers to the Catalonia Referendum... if Catalonia had asked?" He followed this up with, "Why wasn't Catalonia granted the same privilege Scotland received when it voted on independence?"

    John further wrote, "to answer that the 'constitution disallows it' is not fully satisfactory," and finally, "Catalonia's separatists argue that the constitution is unfair, and was written by Francoist holdovers to serve their own interests."

    I was surprised because in several previous posts, I fully addressed these questions. If I remember correctly, several other participants in WAIS did so as well. But let me try again to clarify my points and first address a more immediate and basic question.

    The October 1st referendum result in Catalonia, besides not being a legal referendum, did not comply with basic standards of any kind. It is therefore not possible to claim legitimacy or credibility. There are other more technical reasons to reach this conclusion, despite what the Catalonian Generalitat, or WAISer Jordi Molins for that matter, argue to the contrary.

    But suppose--just suppose!--the Referendum result was legitimate.  I then ask, is it reasonable to claim that 36% of population is a valid measure to justify independence? I believe that such a massive social transition, the separation of a society, with its economic, political, legal, and social impacts, should be decided by a great majority of the population, not a minority voicing its opinion, perhaps or most probably against the will of the majority.

    Regrettably, yesterday the Catalonian Generalitat, in an absurd and ridiculous ceremony based on this assumption, declared independence but also its immediate suspension--yes but no at the same time! The declaration reminded me of the Mexican comedian Cantinflas, who is perhaps not so well known by many non-Spanish-speaking WAISers but famous for his frequently absurd, contradictory and ambiguous speaking style.

    Well, let me now try to answer JE's questions, regarding the Venice Commission, which for those unfamiliar with it is the EU entity in charge of solving legal matters regarding internal constitutional affairs. This body already stated, in response to a specific consultation from the Generalitat, that the Referendum could not be held in conflict with constitutional law. For this reason it would have been very difficult, and most likely impossible, for them to send or authorize observers.

    I am not a lawyer, but regarding the question as to why Catalonia was not granted the same privileges as Scotland--well, it is already clear.  It would have been against the constitution to grant such privileges.  This is not the case for British law, which I presume does not explicitly have anything against such procedures if it is agreed to among the British regions.

    But suppose again--just suppose!--that permission had been granted by the Spanish government. In that case, unfortunately they too would have been acting against the law, and being accomplices, they would immediately be legally accountable and most likely accused of prevarication, which would have been unacceptable and politically suicidal.

    Finally, it is true that Catalonian separatists argue that the Spanish Constitution is Francoist, but they should remember that this same constitution was approved by 90% of the Catalonian population in a legal--this time it was!--referendum. Catalonia by the way gave it the largest approval percentage of all the Spanish regions. Therefore the "Francoist constitution" argument is just one more of the hackneyed and oft-repeated historical manipulations of the independentistas.

    JE comments:  I fully understand the legal argument, but it still is not--sorry!--fully satisfactory.  One could counter the "it's the law" interpretation with many Godwinesque case precedents, such as Dred Scott and Plessy v Ferguson in their day, or Citizens United at present.  Is the right (the legal) always the good

    I'm neutral on Catalonian independence, and there are solid points on both sides.  But it's problematic to argue that the Referendum results were wrong on procedural grounds, when the vote itself never had the chance to operate otherwise--read, legitimately with observers and universal participation.  There can only be one result from this:  intransigence on both sides.

    Next, Ángel Viñas seconds José Ignacio Soler's view--or thirds it, if we include José Manuel de Prada.

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  • My Work with EU Election Policies (Angel Vinas, Belgium 10/12/17 10:56 AM)
    In reply to John E's questions of October 11th:

    1. As far as one can trust newspaper reports, the Catalan secessionists explored the possibility of the Carter Foundation supervising their referendum.  Apparently it didn't reply.

    2. The Venice Commission published an answer according to which the planned referendum had to fulfill certain conditions. It did not.

    3. What I said in my previous post about the allegation that such a pucherazo-prone referendum would serve to provide a sort of "legitimacy" to the secession was highlighted yesterday by none other than His Excellency the president of the Catalan Government.

    About tooting my horn: the EU through the European Commission had started some electoral observation exercises at the end of the 1980s. The EU was also involved in supervising not elections per se, but developments on the ground in the Serbian and Bosnian war. It was done in scarcely a well-defined and systematic way. When I returned to Brussels from the UN I started agitating in favor of updating in certain areas: electoral observation was one of them. I was responsible for a melange of files concerning security policy (in its infancy), multilateral political relations, human rights and, crucially, assistance to democratization.

    I was fortunately helped by a very good Spanish civil servant, Carmen Marques, who did the ground work. We had a draft policy document ready when the crisis of the Santer Commission blew up and we left it for its successor, the Prodi Commission. After a lot of bureaucratic wrangling we pushed the file to completion. I must say, for the record, that we had held open the choice of leaders of the electoral observation missions but the Commissioners thought that pride of place should be given to MEPs. It became a growing field later on and everybody was very happy. Carmen and I fell into oblivion. Such is the fate of civil servants.

    All of this I related in my book Al servicio de Europa (In Europe's Service).  In the EU I learned how one could combine national inputs with supranational approaches. Don't ask me please about what I feel about right-wing or left-wing nationalisms, from here or there.

    JE comments:  Getting a policy change through the EU bureaucracy must be a massive undertaking.  It's hard enough in a tiny academic department.  Ángel Viñas has my deep admiration.

    But to say Ángel "fell into oblivion"?  We cannot be talking about the same person!

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