“This is not about independence, but democracy” was a slogan frequently repeated by the independentists. And it was true in a sense, but not in the sense they meant it.
The main argument against the unilateral illegal way to independence is not the unity of Spain. The Constitutional Court has recognised independence as a legitimate option. Instead, the main reason is the respect for the rule of law. As Manuel Toscano has noted, “the rule of law is a moral value, or more precisely, it is an ethical politic ideal about how free individuals should govern themselves”.
“If Spain is an advanced democracy, it will allow the referendum”, said Raül Romeva, the Catalan government’s councillor for Foreign Affairs. “Since when referendums are anti-constitutional?”, wondered Oriol Junqueras in TV3. “If a constitution bans democracy, it must be an anti-democratic constitution […] the democracy of Catalonia’s citizens is above any law the state could want to impose on us”.
It remains a bit unclear what distinguishes an advanced or functional democracy, beyond the fact of allowing independentists to do as they please. Italy, France or United States do not allow secession referendums, and in some cases they have blocked them. According to Junqueras, their constitutions would not be democratic.
In Populismos, Fernando Vallespín and Máriam Martínez-Bascuñán write about the “electoral democracy”, studied by Larry Diamond, “where an arithmetic people that represents an electoral portion takes precedence over a constitutional body that performs a representative role without which we can not speak of full-fledge democracy —protecting values, individual freedoms and ensuring the balance of institutional powers. This popular or populist dimension is used as an instrument by cunning leaders as a subterfuge to hide a sheer desire for power, or to undermine the neutral powers that protect democracies by ensuring pluralism. Thus, there is a break with a forgotten axiom: in democracy is not possible to split the actual electoral elements from the ones who enable its electoral functioning, albeit many leaders insist on identifying democracy with a simple plebiscite”. Or, using Donald Trump’s words, “The only important thing is the unification of the people, because the other people don’t mean anything”.
The process supporters can justify the violation of law on several ways. The most usual tactic, in line with Trump’s words, has been to not recognise the existence of Catalans who oppose to independence —only around the half of Catalans, after all. Another way is justifying the breakdown of law on the exceptionality of the circumstances. In the face of a state which is both stupid and evil, the obstacles from the government, and the exhilarating pacific blooming of a democratic movement, there is no other option than to break the law. This argument is dangerous: the moment we play the exceptionality card, anyone else can play it again. […]
If Spain owes many successes to Catalonia, it would be equally cynical to deny Catalonia’s responsibility in its faults and failures. Following the restoration of democracy, nationalists ruled in Catalonia for long periods. Jordi Pujol held power for 23 years. Throughout that time, he developed a clientelist network. The Catalan parties had also a role in Spain’s government: they have voted almost the half of the national budgets, with both the Socialist Party and People’s Party, and achieved around 16 years of effective government agreement in Madrid. Jordi Pujol refused to join the governments of Felipe González and José María Aznar when they made him the offer, because that would have undermined his position in Catalonia. When independentists talk of Spanish corruption, they should keep in mind that they are talking about their own corruption as well. If we talk of backwardness, the regions that have had a greater influence on the government should take a greater responsibility.
Furthermore, there are examples of lack of clarity and disrespect for the law and the word. For instance, the fact that Convergència i Unió, in its different electoral platforms, never included the independence among its goals, and yet it pursued it once in the government. A regional election was held in 2015, which independentists sought to present as a plebiscite —Convergència and Esquerra Republicana, two parties theoretically very different, ran on a joint ticket. They obtained the 47.8% of the votes which, thanks to the electoral law, allowed them to get a majority of seats in the Parliament. First, they deceitfully interpret a regional election as a plebiscite. Afterwards, they claim to have received the mandate to hold a referendum, despite having obtained less votes, that is, they re-interpreted again the election. As the roadmap seized by the civil guard shows, the goal was never the referendum, but a unilaterally declared independence. The call to an illegal referendum, which the state could not authorize in any way, was aimed to show the intransigence of “Madrid”, the idea that “we had no other choice”.
But the clearest sign came on 6th and 7th of September [of 2017] when the Catalan Parliament, with the opposition absent and against the judgement of the chamber’s lawyers, passed the Law of juridical transition and the Law on the Referendum. The Statute of Autonomy and the Spanish constitution were violated, as well as the chamber’s rules. Catalonia placed itself outside the law, with a majority that would not even have been sufficient to modify the Statute or the electoral law. As much as they talked of democratic principles, what secessionism was doing was more similar to establishing a sovereign dictatorship following Carl Schmitt’s doctrine.
Shortly before the start of the voting on the October 1st, the Catalan government announced that the census was going to be universal. People was able to cast multiple votes. There were no envelopes, and ballots print at home were allowed. The international observer mission headed by the Dutch ambassador Daan Everts, who denounced the use of force by the Spanish state, concluded that “the referendum did not meet the international standards”. The counting was not reliable and, before knowing the actual results, the president Puigdemont announced that the consultation legitimised independence.
The episode was repeated several times throughout the process. The rules passed by independentists violated the current legal order. They placed themselves outside the law, and then, as the man who commits a murder and then abandons the most elemental rules of courtesy, they broke the very laws established by themselves.