An Illegal Referendum?

Lluís Jou

As Catalonia continues down the path to achieving its own state, one of the necessary stops will be the holding of a referendum in which the Catalan citizenry decides, freely, if it wants to be an independent state within Europe or not. Those who stigmatize this strictly democratic proposal (one that gives voice to the citizenry) have offered as proof that the referendum is unconstitutional and that those who promote it are irresponsible and will never see what they are asking for ever accomplished. They also claim that independence itself is unconstitutional and that Catalonia will never be an independent state.


These claims can be overturned with two arguments that are based on principles. The first is the principle of natural law: democracy and the pre-existing reality of Catalonia must take precedence over the Spanish Constitution. The other is the principle of positive law: the law is an instrument that serves politics and society, and it loses all meaning, and all authority, when it is not longer useful.


The first argument has been cited a great deal over the last few weeks. The Spanish Constitution cannot be used to deny the Catalans their right to decide, and it is also clear that in a democracy there is no way that forbidding access to the ballot box can be legitimized. In the Constitution no list of issues exists that the citizenry cannot be consulted about. And if there were, democracy and Catalonia would still come before the laws. We can set this issue to rest, because the Constitution’s fundamental principle is democracy. President Mas has said it quite clearly: the Constitution cannot act as a barrier to the aspirations of Catalonia.


I want to look closer at this second argument. Is a referendum that would allow Catalans to express their opinion on the future of Catalonia unconstitutional? Those who insist on its unconstitutionality cite articles 1 and 2 of the Constitution, which state that national sovereignty resides in the Spanish people and, thus, it is a matter that all Spaniards should be consulted about. They also claim that the Constitution is based on the indivisible unity of the Spanish nation and, therefore, Catalans can only organize a referendum by way of the complicated and deterring procedure found in article 168 for constitutional modifications.


Let’s break this down step by step. The Law 2/1980, of January 18th, which establishes that only the Spanish state can call a referendum, regulates referendums and their modalities. This law foresees that referendums can be held on issues that only affect one province or more. Saying that sovereignty resides in the Spanish people does not mean, in any instance, that every decision must be put to a State-wide referendum. Referendums on the statutes of autonomy are a clear example of this. The law of 1980 foresees three kinds of qualified referendums: those of article 92 of the Constitution, which put to referendum political decisions of particular significance, those of article 167, which refer to constitutional modifications, and those of article 168 that are related to statutes of autonomy. If on behalf of the Spanish government there is a political decision to permit a referendum that would ask Catalans if they want to form an independent State, I don’t see the Spanish Constitution or the law to be an impediment. The referendum Catalans are asking for deals with a political decision of particular significance, but it is clear that the referendum, in and of itself, and the question that would be included in it, would not involve a modification of the Constitution. If the pro-independence option loses, it would leave things as they stand and no constitutional modification would be necessary. Only a result favorable to independence would bring changes to the structure of the State, and it is not yet clear that these would be changes to the Constitution. They would be changes of another sort. On one hand, modifying the structure of the Spanish territory and its population could be construed as a constitutional modification, but on the other hand if Catalonia were to leave Spain the Constitution could remain in force throughout the rest of the Spanish state without having to modify a single word, because the Constitution does not even mention Catalonia. Only if there is a result in favor of independence should we begin discussions about a political solution.


Therefore this is not a legal issue, but a political one. According to article 92 of the Constitution and article 6 of the Law 2/1980, if the political will exists to authorize the holding of a referendum in Catalonia, then it would be enough if the President of the Spanish Government, at the urging of the Catalan Generalitat, were to ask for authorization from the Spanish Congress. This authorization would have to be granted by absolute majority because the question Catalans wish to ask does not, at the outset, modify the Constitution.


Thus, to ask for a referendum to be held so that Catalans can decide whether they want a state of their own is constitutional, legal and democratic. Authorizing the referendum is too. To deny this authorization may be legal, but it is anti-democratic and it would be yet another example that illustrates how little the Spanish state structures value Catalonia.

Lluís Jou is a notary and a Professor of Law at the University of Barcelona (UB)