Excerpts from the book : “155: Los días que estremecieron a Cataluña”. Editorial Doña Tecla. Teresa Freixes

On the 6th and the 7th of September 2017, we attended to what I called “the Plenums of Shame”. This refers to those two days in which, without any respect for parliamentary regulations, nor for the Catalan Statute of Autonomy, nor for the Spanish Constitution, the secessionist deputies of the Catalan Parliament passed the so-called “disconnection laws” that sought to give support to the referendum for self-determination and to establish Catalonia as an independent state.

With this objective, the Catalan pro-independence politicians had previously carried out a protocol for a coup d’état, by implementing a reform of the Parliament regulations which allowed them to pass those laws without granting the parliamentary opposition to discuss nor amend them. This reform alters the fundamental nature of representative democracy because the elected representatives can’t do their inherent duties as deputies. This was endorsed by the Constitutional Court which declared, in its ruling, that the legislative procedure must allow the presentation and debate of amendments. Still, the Catalan Parliament (controlled by a sharp majority of pro-independence deputies) has not modified the regulation to respect the Court’s ruling.

On the 6th of September, during the first plenary session of shame, the Law of the referendum for self-determination was passed. Without even seen the text of that impossible legal plan, it was already clear that the referendum could not be carried out, because it had been repeatedly declared contrary to the Constitution by the Constitutional Court. Moreover, once it was made public, there was no other option than to firmly reject what it proposed. This was due to both legal and legitimate reasons.

Legally speaking, this “legal project” does not comply with formal, constitutional or international standards. International Law requires (and the Venice Commission ratifies this,  in its “Code of Good Practice”) that any referendum must have a regulatory law previously planned (that is, authorized) and in force, at least one year beforehand. Because it is believed that the citizens must be completely informed about it. In our case, there is no constitutional provision and the regulatory “law” was approved few weeks before the consultation was held.  In short, from a formal point of view, none of the requirements were met. In addition, they want to call it Referendum of Self-determination, but even for this they are wrong, because technically, it would be secession: when a territory separates from a State of which it is a part; since self-determination refers to colonial powers.

Regarding legitimacy, it is all based on the content that a regulatory referendum law must have in a democratic society. This is also stated in the aforementioned Code of the Venice Commission (and also evident in several judgements of specific cases, for example, Montenegro or Crimea).  There are clear contradictions with the required “good practice” in accordance with international resolutions, since:

– The text was not the result of a broad debate whose outcome is a majority agreement between the different political options. It was prepared without the participation of the parliamentary opposition, thus robbing the basic rights that political representation stands for. Neither were the citizens duly informed,  breaking the transparency rules that are in force in Catalonia.

– The neutrality of the convening authorities was not guaranteed, as required in these processes. On the contrary, the Government was totally belligerent, even putting pressure on its civil servants if they did not agree to contribute to the illegal referendum.

– The census was not explicit, which is essential to assure the identity of those citizens who have the right to vote. For a citizen with the right to vote, either in elections or in a referendum, he/she must be in the census.  In addition, the census must always be established in advance, so all citizens can verify that their data is correct.

The “legal project” intended to unilaterally declare an “express independence” by simple majority of affirmative votes in its favor. Here it should be noted that, contrary to what the spokespeople of secessionism affirm, the Venice Commission, in the Judgement on Montenegro in 2005, and again in the one concerning Crimea in 2014, considers it necessary to demand clear majorities of voters on the census and large majority of affirmative votes, in order for secession is to be accepted. This is because these are decisions of qualitative importance that require clear majorities in order for them to be implemented.

The second plenum of shame took place on the 7th of September. With the same technique of the “express” procedure, the law for “legal transience” for establishing the Catalan Republic was approved. This law was not only a knockout blow for the democracy in Catalonia. It aimed to destroy the Spanish Constitutional order and the freedom we obtained with it.

This Law was a copy of the one that enthroned National Socialism in Germany during the interwar period. What was called the “Enabling Law”, which in Article 2 provided that “The laws issued by the Government of the Reich may differ from the Constitution as long as they do not contradict the institutions of the Reichstag and the Reichsrat. The rights of the President remain unchanged”. In Germany, in 1933, it was said that with that law they were going to “solve the dangers that threaten the People and the State”. In this line, the so-called law of legal transience enabled the establishment of unconstitutionality as if it was a legal regime. Hence, the analysis of its content allow us to further evidence the totalitarian nature of the regime that it was intended to impose.

Several details about the “transience” law. The attribution of nationality is inspired by the regulations of the Baltic republics, which have produced so much discrimination in minorities that were not nationals of the place when these territories proclaimed independence. This Law contained generic regulations that will require further development, they will have to specify the needed requirements (not only filiation and residency) to obtain the Catalan nationality.

The integration of civil servants is regulated by the same technique: general criteria was given in this Law and everything was left for further development. It has also been disseminated in various media, that any public servant who does not feel “identified” with the principles of the “new country” will be exempted.

Regarding the political organs, the “transience” law established the use of the basic institutions under a parliamentary model: the president of the Generalitat as head of State, Government and Parliament, with the peculiarity of integrating the electoral syndic (president of a kind of Electoral Board) in the Parliament as a vice-president, breaking the necessary functional independence of this control body.

They also intended to ensure control over the judiciary system, transforming the Superior Court of Justice of Catalonia into a Supreme Court, with a president appointed by the President of the Generalitat and a named Public Prosecutor (see, the Law doesn’t require that he/she to be elected) by the Parliament, without specifying the parliamentary support needed. Having a “domesticated” Judicial Branch is basic, to ensure impunity for any crime related to the independence process, including corruption and misappropriation of public funds.

Not content with trying to overturn the constitutional and legal provisions in force, art. 12 of the Law of Transience provides that the Government [of the Generalitat] may dictate the necessary provisions for the adaptation, modification and inapplicability of local, autonomous and state law, and that these decrees will also serve to recover the rules that have they were annulled or suspended by the Constitutional Court and the rest of the courts.

Since it is a transitory law, pending, according to them, to adopt a republican Constitution, the Law regulates a Bolivarian constituent assembly, preceded by a participatory process whose result will link the constituent deputies, who must adopt a Constitution culminated by a referendum that has no established quorum of voters or a necessary percentage of affirmative votes.

In international law, in order to consolidate positions for the construction of a State, it is necessary to demonstrate that the person who wishes to create it dominates the territory (fortunately, the situation had changed with demonstrations of Catalan citizens defending their rights as Catalans, Spaniards and Europeans), creates Law and consolidates it, and transforms the institutions officials creating other parallels that supplant the primitives. We are on the road.

Teresa Freixes, Professor of Constitutional Law at Autonomous University of Barcelona.