Constitutional Democracy and the secession referendum in Catalonia (I)

Published originally in Spanish. Manuel Toscano. JotDown.

II

Among the justifications put forward by supporters of the referendum and secessionist adventure is the so-called “right to decide”. It has been a powerful rhetorical resource behind which lies the right to self-determination of peoples or secession. That supposed right simply does not exist in the Spanish constitutional order nor is it protected by international law. This was explained by the famous decision of the Supreme Court of Canada of 1998 on the secession of Quebec, so often invoked in recent times and whose reading can only be recommended. In this, the Spanish Constitution, when it attributes sovereignty to all Spanish citizens, does no more than follow the rule of the constitutions of democratic countries, such as the French that considers the Republic as indivisible, or the Federal Republic of Germany, whose Court Constitutional Court ruled in April of this same year that Bavaria has no right to hold a referendum on independence because it would violate the Basic Law. The Länder “are not the owners of the Constitution,” said the sentence, since the sovereignty corresponds to the German people as a whole.

Neither international law, despite what some claim, protects the supposed right of self-determination in the Catalan case. The Canadian Supreme Court recalled, with regard to Québec’s alleged right to self-determination, that a right to secession under the principle of self-determination of peoples is only recognized in international law in cases where a people forms part of a colonial empire or is subject to domination and exploitation by a foreign power. In all other cases, respect for the territorial integrity of states is always a fundamental principle of international order. Therefore, in the case of a democratic state whose citizens are represented in the institutions and treated equally and without discrimination, the exercise of self-determination must be carried out in an “internal” way, ie within the framework of the existing state. The Supreme Court concluded that none of the conditions previously formulated applied to the province of Quebec, where citizens enjoy a citizenship equal to the rest of the Canadians and have institutions of self-government within the federation. I do not see how a different conclusion could reasonably be drawn in the case of Catalonia.

Why has the “right to decide” motto been so successful? It is obvious among the nationalists that they believe, as Ernst Gellner said, that the state and the nation are made for each other, that every nation must have its own state and every state must be the state of a nation. It is what he called the “nationalist principle of legitimacy”, according to which the only legitimate government would be national self-government and political borders should be drawn accordingly. The right to self-determination, or secession, follows naturally from this principle of legitimacy. It is what in literature is known as the ascriptive theory of secession, according to which the right to secession would be a “natural” right prior to law that every nation would have for being so. As an illustrative example, it is worth remembering the rallying cry of the demonstration that Esquerra Republicana de Catalunya convened back in 2006 with the motto “Som una nació i tenim el dret de decidir.” For a nationalist, the two statements united by the copulative conjunction that make up the slogan should read: “we have the right to decide” because “we are a nation”.

This would explain the nationalist search for differential features or signs of identity for the recognition of the existence of the nation, because once its existence is accepted the corresponding right follows suit. Hence a certain ontological obsession, according to Gellner, for nationalists regard human societies as if they were a picture of Modigliani, composed of large internally homogeneous and perfectly delimited spots of color. In other words, the nationalist believes in the existence of a unique people, differentiated by land, blood and language, which persists through the vicissitudes of history. If blood and race are no longer well accepted, they can always be replaced by identity, language and culture as equivalent to the old Volkgeist or the national character of the Romantics. Nor is there any doubt of the tendency to hypostasize nations, what a scholar of nationalism like Rogers Brubaker has called “group realism”, both in the popular imagination and, unfortunately, in the discourse of some scholars. From Prat de la Riba to Jordi Pujol that has been an important vein in Catalan nationalism.

Of course, as Brubaker himself has pointed out, one does not need to believe in the existence of nations, and may even declare himself an agnostic in such matters. Nor does it seem reasonable to support an alleged natural right to secession, irrespective of law, attributed to collective aggregates such as nations. Only the law can grant such artificial persons legal personality and, consequently, obligations and rights. In the case that one believes in the existence of moral rights prior to the law, as a result for example of reading Locke, it is reasonable to regard individual persons as the sole holders of such moral rights.

That is why it is more interesting to look at the right to decide for non-nationalist reasons. It is important to consider this to understand why many people outside of nationalism in Catalonia and outside Catalonia have found the alleged right attractive or defensible, especially in certain sectors of the left. It is here that the rhetorical effectiveness of the slogan can best be seen, because the right to decide is associated with attractive values such as freedom or autonomy to choose how to conduct our life. In collective terms, it evokes the democratic principle, according to which citizens, considered jointly as a political body, are the ultimate holders of power and therefore have the ability to decide on fundamental aspects of the political order, either directly or through representatives freely chosen. From this association derives the belief of so many in the impeccable credentials of the right to decide. As usual in the literature on secession, one could speak here of a “plebiscitary theory” of the right to decide, according to which this right would be an elementary democratic requirement, without nationalistic complications, since it would not depend on the national character of the community, but rather on the will of a set of citizens territorially located.

However, such a plebiscitary conception hardly resists a close analysis or survives the multiple objections it generates. A first problem is obvious if we ask who would have the right to decide, because the functioning of the democratic process presupposes the existence of a well-defined demos. The question of who is part of the body politic, with the right to participate in decisions with their vote, is not a secondary or trivial issue. Democratic politics necessarily develops within a given political framework, which defines the existence of a political body of citizens that collectively decide on the fundamental issues that affect the political order and its institutional organization. Only within this established political framework does the democratic principle make sense, and the majority rule applies. Simply, there can be no democracy without demos or popular sovereignty without a constituted people. Othewise, the invocation of the right to decide leads to an impasse or delivers contradictory results. Compared with the plebiscitary version, the nationalist version offers at least a support to the right to decide: an idea of the people to whom corresponds that right to decide.

In view of their lack of clarity, the consequences of the unrestricted application of the right to decide are not at all attractive. Any group could invoke the right to decide to adjust the scope of the decision to suitability, for example by securing a majority. In case of dissent from the majority decision, the dissenting minority could question the legitimacy of the decision by proposing an alternative political framework or by threatening to break the existing one, thus undermining the very foundations of democratic politics.

Moreover, the democracies we know, in North America and the European Union, are constitutional democracies. In a democratic constitutional regime, the functioning of political institutions and the exercise of political power by citizens or their representatives are subject to the constitution. Complying with the constitution is mandatory and subject to review by the courts. In other words, in a constitutional democracy you can not decide on anything you feel opportune, at any time or by any majority you deem adequate. On the contrary, the fundamental questions of the constitutional order are distanced from the play of legislative majorities and partisan struggles. The fundamental principles and norms laid down in the constitution are protected by costly reform procedures, which require qualified majorities.

All of this is often overlooked when discussing the right to decide. Worse still, as we have witnessed in recent years, some pose an inherent contradiction between democracy and constitution, as if the second were an obstacle to the right to decide. This confrontation seems to imply that the constitution would have to yield to an expressed will of the majority. The right to decide, we are told, cannot be hindered by obstacles in a genuinely democratic constitution. In spite of superficial appearances, this suggested contrast and inference are completely contrary to the very meaning of a constitutional democracy (or a democratic constitution, which is the same). To deliberately express it in a provocative fashion: in a constitutional democracy you can not and should not decide about just anything. There are things that must be removed from the reach of decisions of any majority, however broad it may be. Such is the very meaning of the Constitution, as Giovanni Sartori pointed out: it is to set limits to power, to any power, even to that exercised by citizens as a body politic over one another, in order to ensure coexistence in freedom. A classic formulation of that old sense of constitutionalism is found in Article 16 of the Declaration of Rights of Man and Citizen of 1789, which reads: “Any society in which the guarantee of rights is not established, nor the separation of powers, lacks Constitution.” That these two things, the limitation of power and the protection of liberties, can not be dissociated is the best legacy of liberal constitutionalism.

Therefore, if there is a democratic constitution, there can be no unrestricted right to decide, which would be absolutely incompatible with the first. It is certainly easier to speak of the right to decide, implying that to be free is to be able to choose what we want, rather than to understand that to be truly free we must restrict our choices, because there are things we should not choose. Such restrictions politically ensure our freedom: fundamental rights and freedoms guarantee the inviolability and moral independence of people as well as the fundamental equality of citizens; that is why they should not be available to any majority.

Speaking of the right to decide in a democratic context, it could be argued that such precautions are taken for granted, so that any decision must safeguard those fundamental rights and freedoms of individuals. But this does not seem clear at all. In democratic terms, fundamental issues of constitutional order concern us all, and since they affect us all must be decided by all. When it comes to these fundamental questions about the political order, everyone has an equal right to take part in the decision. However, when it is invoked the right to decide is made on behalf of a part of the citizens and not the whole. But citizens who are excluded from a decision that concerns them will see such exclusion as an impairment of their political rights and the principle of equality among citizens. In the name of that elementary democratic principle, equality between citizens, which results in the demand for equal participation in decisions affecting fundamental questions of the political order, one has to ask: with what right do a subset of citizens reserve the right to decide for others? Let us think that this turns against the accusation used in favor of the right to decide: if others decide for us as regards the fundamental aspects of the political order, the essential symmetry between citizens has been altered.

The issue is particularly serious because the right to decide is invoked to change the political framework through secession and precisely alter the composition of the demos. Far from being a trivial issue, it raises the most serious question in democratic politics. As Stéphane Dion or Juan Claudio de Ramón explained, there is no more serious political decision than turning our fellow citizens into foreigners. Such a decision dramatically affects the very foundations of the relationship between citizens, since some, say a local majority, arrogate the right to alter the status of citizens of others, with serious consequences for their rights and freedoms, not to mention their other interests, and changing their situation in the face of political institutions. A disturbing perspective in a constitutional democracy, because it opens questions of political justice and not only considerations of prudence.

Moreover, political prudence justifies a great deal of caution in the right to decide. If the right to decide as a democratic principle is invoked, there are no limits to its application. Any collective could appeal to that right, and also any subset of citizens within that collective, and so ad infinitum. Any minority could claim the need to change the framework of decision-making in order to become a majority, while at the same time exposing itself to the same danger. What does not seem coherent, according to the plebiscitary conception, would be to demand that right as part of a whole and then to refuse that same possibility to minorities within the minority. To give a distant example, although there are close examples, it does not seem reasonable to demand the right to decide for Quebec and at the same time denying it to Aboriginal populations or Anglophone populations within La Belle Province in the name of territorial integrity and the intangibility of borders.

The arguments about the undesirable consequences of the plebiscitary conception of the right to decide are equally valid for the nationalist version. It is important to point out that the appeal to the right to decide depends at the end of the existence of nationalist claims. Without them, nobody would talk about of the supposed right. The nationalist discourse is substantially different from the plebiscitary conception, since it ascribes the right to self-determination to a certain class of social groups, the nations, and only to them. Without the nationalist social ontology, the presumed right to decide moves simply in the void. However, the rhetorical use of the right to decide has proved useful to give a democratic patina to nationalist aspirations before a non-nationalist audience. In fact, we can suspect that its main rhetorical function has been negative: to inhibit or reduce the rejection of nationalist demands, dressing them as democratic radicalism. A good part of the Spanish left proves that the strategy is successful.