Originally published in Spanish under the title “Recordando las leyes del golpe”. Teresa Freixes. El Mundo, July 16, 2019.
The author explains how the so-called ‘disconnection laws’, passed in Catalonia in 2017, fit in the Kelsen’s concept about a coup d’état.
During September 2017, we saw what I have been calling the ‘plenaries of the shame’ in the Parliament of Catalonia. On the 6th and 7th of that month, disrespecting the own Parliament regulations, the Statute of Autonomy, the Constitution and even the International Law, the secessionist majority passed the so-called ‘disconnection laws’. Everything fit perfectly in the Kelsen’s concept about the coup d’état when he says that it is not always performed by the means of an armed uprising that implies the use of force, but also it may happen when illegally the constitutional rule of law is substituted by other, not following the procedures legally established. That happened in Catalonia with the approval of two laws with the purpose of breaking the Spanish constitutional system.
They started by modifying the Parliament regulations, aiming to prevent that non-secessionist opposition could introduce any amendment or discuss the text that changed the procedure to pass laws, violating – as the Constitutional Court ruled afterwards – the rights of the Parliament members that could not perform their functions in the way usual on a democratic system.
On September 6th, 2017, the Law for a self-determination referendum was passed. It failed to respect the constitutional and international standards. International Law requires, and the Venice Commission establishes so in its Code of Good Practice, that any referendum must be constitutionally permitted and that, at least one year before, there must be a law governing it. In our case, there is not a constitutional permit and the governing law, unconstitutional, was passed few weeks before the referendum was held on October 1st of that same year.
We must remind here that International Law acknowledges the right to self-determination in the decolonization processes, and the right to secession for territories where minorities suffer severe violations of their human rights. None of these options is applicable to Catalonia, as it has been repeatedly confirmed by the United Nations. Besides, not only the Law did not guarantee the neutrality of the authorities, as it is required in any process of this kind, but also the regional Government was totally belligerent, even forcing the civil servants if they tried not to help in the development of the illegal referendum. The Law did not establish how the census had to be elaborated. That is essential in order to know who are the ones that can vote and for the citizens to check if their data are correct. Neither the polling stations were set up with the guarantees required to ensure the neutrality of the process.
The Law’s aim was to declare unilaterally the independence by a simple majority of votes. But the Venice Commission, on its report on Montenegro in 2005, repeated concerning Crimea in 2014, establishes that, when referendums affect the basic constitutional structures, ample majorities should be required, both in voters over census and in affirmative votes because they are decisions of a qualitative importance.
On September 7th and by using the same express procedure was passed the Law of juridical transition and foundation of the Republic. They tried to destroy the 1978 constitutional rule, enabling the Generalitat to issue the rules that will be the basement of the new system. They pretended that with that Law, they will travel “from the law to the law”, meaning that Spanish Constitution and laws – including the Catalan Statute of Autonomy – will legally stop being applied to be substituted, also legally, by laws and other Catalan rules.
Formally, the Law of transition declares that the Constitution, the Statute of Autonomy and any regulations that could be deemed against those of the new regime will not be applicable in Catalonia. With the provision that a new Constitution must be issued, it is also ruled that while that is not in force, the regulations in Spanish Constitution and the Statute of Autonomy about individual rights will be applied as long as they are not against the new Catalan laws. Actually, the so-called Law of transition is simply the enablement of the unconstitutionality as if it was a legal regime.
The attribution of nationality, a basic legal institution in the creation of any state, is inspired in the regulations of the Baltic republics that have caused huge discriminations among the non-national minorities at the time that independence was declared. The Law include generic regulations that will require a development in order to clarify which requirements (not only the descent and the place of residence) will be needed to acquire the Catalan nationality, that is feared will lie in supremacist criteria, as for the reports leaked from the National Transition Council. By the way, they forget that no state can give unilaterally – as they want – the double nationality with any other.
They manage the integration of civil servants using the same technique: the Law gives general criteria and everything is left for a later development, ensuring the loyalty of those to the new regime. In Tax matters, the Generalitat will be the only authority enabled to collect taxes, breaking with Spanish Tax system.
The regulation about political bodies is established according to the basic rules of a parliamentary system: the president of the Generalitat as chief of State; Government and Parliament, whit a peculiarity: the president of the Board of Elections is integrated with the Parliament, as a Vice-President, breaking with the independence obviously needed by this controlling body. There are no provisions about a Constitutional Court.
They try as well to ensure the control over the judiciary, transforming the High Court in Catalonia into a Supreme Court, which president would be appointed by the president of the Generalitat; the Public Proscutor office will be appointed by the Parliament. Besides, the Law provides an amnesty for all those who, even the ones convicted by a final judgement, have been judged or sentenced for anything related with the Catalan process towards independence.
As a temporary law, it establishes a Bolivarian constituent assembly, preceded by a participation process; the constituent members of Parliament will be bound by its results. The Constitution would be approved by referendum with no requirements of quorum or a percentage of “yes” votes established. The Law creates as well an Elections Court, similar to the Board of Elections, which was supposed to control all the voting procedures (elections, referendums, etc.). It was implemented with members related to the parliamentary secessionist majority – who resigned after being subject to monetary fines.
And so it came the controversial referendum in October 1st and the independence declaration by Catalan Parliament, before the application of article 155 of Spanish Constitution. The Constitutional Court decided, first, to suspend the Catalan laws and, afterwards, declared them finally unconstitutional and, therefore, null.
However, the secessionist authorities insisted in executing the measures that could lead to independence. Some of them are fugitives from justice; the Supreme Court and different courts of justice accuse others, depending on their implication and the legal status of each. After a judgement that was broadcast by TV and had a big impact on media, we are waiting for the decision from the Supreme Court and the development of the rest of processes.
Teresa Freixes is a professor in Constitutional Law and Jean Monnet ad personam. She is also the general secretary of the Royal European Academy of Doctors.