Brussels think tank: denying self-determination “undermines the Spanish political system’s legitimacy”

Brussels (ACN).- Spanish Prime Minister Mariano Rajoy’s refusal to negotiate and allow the Catalan people a consultation vote on independence “undermines the legitimacy of the Spanish political system” and is a violation of Catalonia’s democratic “right to express its own voice”. Such is the conclusion of Huw Evans, Law Professor at the Cardiff Metropolitan University. In a report entitled Law and Legitimacy: The denial of the Catalan voice, which has been published this Thursday by Brussels think tank Centre Maurits Coppieters, Evans argues that Rajoy could authorise a referendum without breaching the Spanish Constitution. He stated that the Spanish Government’s current attitude “restricts (and, also, for practical purposes, denies) the right of the Catalan people to democratically pursue” independence. Evans underlined the “stark contrast” between the Catalan case and the situation in Scotland or even in Quebec. Indeed, back in 1995, after a referendum on a possible secession of Quebec from Canada, the Canadian Supreme Court had stated “a political system must […] possess legitimacy and that […] requires interaction between the rule of law and democratic principles. The system must be capable of reflecting people’s aspirations”, something the Spanish Government has been absolutely unwilling to do, regretted Evans.

“It would be open to the Spanish Government to not oppose the right of the Catalan people to hold a referendum on independence but, in the event of a vote for independence, oppose any right to unilaterally secede from Spain” states the report. “Such an approach would be entirely consistent with upholding the Constitution but at the same time not deny the Catalan people the right to pursue independence through democratic means” added Evans.

“Opening the discussion” on the fixity of laws

“The Constitution says that the Spanish territory is indivisible, and it is legitimate. However, arguing that you cannot go against it “is wrong”, explained Evans. According to him, the most democratic course of action is the one adopted by Canada and the UK, which agreed to “open a discussion” about whether the fixity of the laws should be maintained.

 “Secession is a legitimate political objective”, for the Canadian Supreme Court

In 1995, after a referendum in Quebec, the Canadian Supreme Court had “concluded that neither the Canadian Constitution nor international law permitted unilateral secession of Quebec from Canada. But […] at a general level the Court concluded that: a political system must […] possess legitimacy, and that […] requires interaction between the rule of law and democratic principles, […] namely, ‘federalism, democracy, constitutionalism and the rule of law, and respect for minority rights”. Therefore, “secession [was] a legitimate political objective” for the Canadian Supreme Court, says Evans.

Contrary to the UK, Spain’s conduct is not “consistent with the principle of legitimacy”

In his report, Evans applies this Judgment to the political situation in Scotland and Catalonia, and concludes that the British “conduct is consistent with the principle of legitimacy”, and therefore with “the interaction of law and democratic principles”.

On the other hand, regarding the Catalan case, Evans underlined the Spanish Government’s “effective curtailment on freedom of expression” which “prevented establishing the democratic voice”. The report rejected Madrid’s idea that the referendum cannot take place within the current legal framework: “Recognising and respecting the Catalan voice does not mean that other voices (whether supportive or hostile) cannot be taken into account. Finally, although the Spanish Government might seek to justify its position by reliance on the Spanish Constitution that would not, according to the Supreme Court of Canada, be defensible”. According to Evans, the Constitution would allow, through a consultation of the Catalan people, to know whether or not they are in favour of independence and, would rapidly lead to further negotiations.

The “stark contrast” between Scotland and Catalonia will lead the international community to react

Evans predicted that Spain would use “any legitimate tool available to try to prevent the referendum”. However, he warned that doing so could undermine the reputation of the country internationally. The rejection of the consultation vote in the context of the Scottish referendum on independence provides “a stark contrast” and could generate the disproval of European Institutions.

“We’re not accusing Spain of mass murder, but of using the law to silence a voice. Clearly in other respects Spain is a democratic country with democratic ideals, but on this issue, for whatever reason, it is denying the voice of the Catalans, [and] the denial of the right to lawfully hold a referendum means that the principle of democracy is not being applied”, regretted Evans. According to him, the international community will not react before the referendum in Scotland will have created “a comparative context”. Spain will not provide an “impressive” image in that regard, concluded Evans.