Photo by Guilherme Stecanella on Unsplash
12th April 2018
It is striking that German judges take no heed of a law that fits clearly within the historical catalog of coups.
On the 6th and 7th of September last year, the Catalan parliament passed a referendum law that very few, inside and outside of Spain have read. Article 1 made clear that the act “regulates the execution of a binding self-determination referendum on the Independence of Catalonia”. It was not, as many wanted to pretend (let’s recall remarks from Pablo Iglesias or Ada Colau), a simple consultation or a grass-roots demonstration with symbolic-festive intentions, but a law by which the regional parliament established itself as a sovereign political subject, gave itself the right to self-determination and organized a referendum on independence.
The referendum would, according to article 4.4 of the law, automatically lead to independence in the following 48 hours after it was held, regardless of the number of people who participated (“if the number of valid affirmative votes is higher than the negative votes, the result entails the independence of Catalonia”). Clearly, the referendum was designed in a way that the only outcome would be one in favor of Catalonia’s independence.
That law didn’t hide its nature. Article 2.2 stated the law established “an exceptional juridical regime, aimed at regulating and guaranteeing the referendum for the self-determination of Catalonia”. More so, to shield the law from any modification it was stipulated that it “prevails over any other norm that may conflict with this one, since it regulates a fundamental an inalienable right of the Catalan people”.
It is striking that German judges take no heed of a law that, by affirming its own exceptionality, non-derogability and supremacy, fits clearly within the historical catalog of coups that have been carried out by parliaments passing exceptional laws that confer extraordinary powers to the executive branch. The Weimar Republic, by the way, perished by means of a parliamentary coup: the so-called enabling act conferred on then Chancellor Adolf Hitler, who had won the election, plenary powers to pass laws without going through the Reichstag. Carl Schmitt (1888-1985) stated “The Sovereign is that who decides over the status of emergency”, which he defined as “the suspension of Constitution by the sovereign power”. The coup that wasn’t would have been.