Carlos García Hernández – Spain: Clarity

There is going to have to be a democratic solution to the conflict surrounding Catalan independence. Spanish state terror, tolerated by the EU, is surely not the answer.

Carlos Garcia Hernández is managing director of the publishing house Lola Books

Cross-posted from the Spanish article in el Comun

Translated and edited by BRAVE NEW EUROPE

There are historical moments when a single political issue absorbs all others. A very clear example of this single-issue politics we have just witnessed in the UK elections. The Tories won because they realised that Brexit was the issue that was going to determine the election result. That is why they based their campaign on a clear proposal to carry out Brexit as soon as possible. Labour was unable to understand this and chose to prioritise other issues. Their position on the Brexit was erratic and unclear, and so they lost.

The new government in Spain should understand that it faces a similar situation with regard to the conflict with Catalonia. The Catalan independence process will be the political issue that determines the success or failure of the government in this Parliament. Either it takes advantage of the next four years to propose a lasting solution to the conflict as the Tories did with Brexit, or I fear that in four years the situation will have worsened even further and the union of the right and the extreme right in Spain will win the elections (regardless of the successes or failures of the current government on other issues).

The desirable resolution of the conflict in Catalonia requires the holding of a referendum on independence. I will now make a proposal for such a referendum. An outstanding model would be the so-called Canadian Clarity Act (A Canadian law from 2000 establishing the conditions for negotiations by the Canadian Government with one of its provinces, should a province vote for independence). In my opinion, a Spanish Clarity Law should be proposed to deal with the independence conflicts within the country following the guidelines of this article.

First I shall briefly explain the positions proposed by both parties. On the one hand, the so-called constitutionalist parties refuse categorically to hold any referendum questioning the indivisibility of Spain. To do it they resort to the article two of the Constitution: “The Constitution is based on the indissoluble unity of the Spanish Nation, common and indivisible homeland of all Spanish people, and recognizes and guarantees the right to autonomy of nationalities and regions integrating it and the solidarity among all of them”. The Constitution was approved in a referendum on 6 December 1978 by a large majority (also in Catalonia). Therefore, the unity of Spain is indissoluble and cannot be subject to referendum in any autonomous community, since, as article one states: “National sovereignty resides in the Spanish people, from whom the powers of the State emanate”.

For their part, the Catalan independence parties base their demands on a loose interpretation of the right to self-determination as set out in the United Nations Charter, according to which “all peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”. The incorporation of this article into the Charter of the United Nations was intended to facilitate the processes of decolonization. However, Catalan independence maintains that it also applies to Catalonia because in past centuries there were several civil wars on Catalan soil in which a large part of the population defended separation from Spain. To legitimise this position, they also resort to the independence referendums held in many territories not made up of colonies, such as the independence referendums in Quebec, Scotland or Norway.

Consequently, the apparently insurmountable stumbling block of the confrontation between independence advocates and constitutionalists in Catalonia is crystallised in a legal argument in which one party maintains that the Charter of the United Nations takes precedence over the Spanish Constitution, and another party maintains the opposite.

However, a deeper reading of this conflict leads us to an idea that predates the debate on the prevalence of one text or another. That idea is that of indivisibility. Thus, it seems that if article two of the Spanish Constitution did not refer to the “indissoluble unity” of Spain, the need to find a democratic method to solve the conflict in Catalonia would have already been exposed by constitutionalism. Similarly, Catalan nationalism only seems to deny the indissolubility of Spain, but not of Catalonia, despite the fact that the majority of Catalans have not declared themselves in favour of independence in the polls and that the pro-independence majority in the Catalan Parliament is only a product of the non-proportional distribution of seats. For the Catalan independence movement, a parliamentary majority is sufficient to declare Catalonia’s independence and to establish an independent republic that is indissoluble and without any mechanism in its legality to guarantee the right to self-determination or reunification with Spain for any of its territories.

I am therefore of the opinion that the real problem is the term indissolubility, and that this should disappear from the proposal for resolving the conflict.

Canada faced this same problem in the 1990s during Quebec’s independence challenge. It was the Supreme Court of Canada that broke the deadlock, resulting in the Clarity Act. This Act established three parameters for holding a referendum on independence in any of the Canadian territories. (Victoria Carbajal included them in her article “The Example of Quebec”):

1) The referendum cannot be held unilaterally.

2) The question must be clear and a minimum participation must be established.

3) The counties that do not support independence will not join the new country.

In my opinion, these three parameters should serve as a guide for the drafting of a Spanish Law of Clarity consisting of the following postulates:

1) If in a period of six months, in an autonomous community a minimum of 50% of signatures of the registered adults with Spanish nationality are collected in favour of a sovereignty consultation, a referendum of independence will have to be held in that autonomous community within the following six months.

2) The question both for the collection of signatures and for the referendum has to be of the type: Do you want the Autonomous Community in which you are registered to become independent from Spain and become an independent state?

3) A minimum of 25 years must pass between consultations.

4) The minimum participation for the consultation to be valid has to be 75%.

5) For an autonomous community to become independent from Spain, the yes to independence must be in the majority in all its provinces.

The first point seems to be supported in Catalonia and the majority of the population does want a referendum to be held. This referendum on independence should therefore take place.

The second point responds to the right call for clarity in the question asked by the Supreme Court of Canada. The question should not be ambiguous or leave any room for doubt: do you want independence or not?

The third point gives the decision to break up a country the historic character it deserves. The creation of an independent state from the break-up of another state cannot be taken lightly. Four referendums per century (one for each generation) seems to me to be an adequate period of time.

The fourth point sets the minimum turnout to which the Canadian court refers. The turnout for an historic decision must be well over 50%, and therefore I think 75% is a reasonable figure.

The fifth point is the furthest away from what is required in Canada. The reason why I believe that a solution such as the Canadian one should not be chosen in Spain is that, if we look closely, the independence of Quebec would have turned the new country into a Swiss cheese full of holes in which each region could have belonged to one country or another. The mess would have been monumental and institutional collapse would have been almost guaranteed. In Spain, the autonomous communities are divided into provinces. It is therefore this division that gives the Autonomous Communities their historical dimension, since the Autonomous Communities cannot be understood without all their constituent provinces.

Therefore, independence should be decided at the level of the provinces that make up an Autonomous Community. If independence is not won in all provinces of an autonomous community, the autonomous community in question should not declare its independence. Likewise, if independence were to be won in all provinces of an autonomous community, the entire autonomous community should become independent, regardless of what happened at smaller administrative levels such as municipalities and counties. Only in this way could the administrative viability of the new state be guaranteed.

To avoid the unilateralism referred to by the Canadian Supreme Court, these five points should be submitted to a consultative referendum of the whole Spanish citizenship. If a majority of Spaniards would be in favour of a law as the one I propose, the political parties present in the Spanish Parliament should incorporate it to the Spanish Constitution by means of a constitutional reform, which as we know needs the votes of three quarters of the chamber to be approved.

Prior to the consultative referendum, the government should open a round of negotiations. To this end, a negotiating table should be created in which all parties with parliamentary representation would be present, so that the five points proposed above would be a starting point for opening negotiations. I believe that as an act of good will and in accordance with the judgments of the Court of Strasbourg, the government should grant amnesty to those imprisoned and those who have fled from justice because of the call for the referendum on 1 October. For its part, independence should correspond to this gesture with a cessation of hostilities on the part of civil society. After a reasonable period of time and once all the relevant changes have been made, the Government should assume responsibility for calling the consultative referendum.

I am convinced that no party, whether constitutionalist or pro-independence, will initially show itself to be in favour of my proposal, but that is why I believe that the proposal would be supported by a majority of citizens in the consultative referendum.

In Catalonia the division of society is dramatic. The process has not only led to acts of violence, but is also breaking up families, friendships and the social fabric. Citizens are divided into two antithetical options and that is why I believe that they do not want either of them. An equidistant and democratic proposal that does not defend the programme of maximums of either of the two opposing factions would be a relief and a prospect of a way out of the conflict. The Spanish nationalists will roar against any proposal for a referendum, the Catalan nationalists will do the same against any alternative other than independence, but I believe that the social majority, both in Catalonia and in the rest of Spain, would show political wisdom that would go beyond this binary friction.

In my opinion, the current government has not understood that it is facing a single-issue legislature in which Catalonia will decide the future of Spain. Instead of putting a lasting solution to the conflict on the table as proposed above, it has opted for the mistaken strategy of kicking the can down the road. Indeed, in this manner it will gain some time. This is how it managed to carry out the investiture and avoid a third election, but after a few more steps it will find itself confronted with the can again. Now it seems that it wants to buy time again with a new kick that will allow it to reform the criminal code so that imprisoned politicians can get out of jail. In return, it hopes to be able to approve the state’s general budget with the votes of the independentistas. If it chooses to continue kicking the can over the next four years, the conflict will not be resolved, but will become even more entrenched and toxic. If the right-wing electoral union is the only one to put forward a proposal for a lasting resolution to the conflict, it will win the elections. Then Spain’s political Right will return to power and the consequences will be catastrophic, both for Catalonia and for the rest of Spain.

Euro delendus est

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