Tuesday, January 01, 2019

If Human Rights are quashed in Catalonia in the name of law and order, what future awaits the EU?


The only squashing of human rights was done by the Catalan separatists. In September 2017 the Catalan separatists squashed the rule of law and democracy in Catalonia.

On the 6th and the 8th of September 2017 the Catalan Parliament adopted two laws:
  1. the Law on the Referendum on Self-determination of Catalonia
  2. the Law of juridical transition and foundation of the Republic
The first law governs the holding of the Catalan independence referendum of October 1, 2017, a binding self-determination referendum on the independence of Catalonia.

The second law was drafted to function as a provisional constitution in case 'yes' won the referendum.
Both laws effectively claim hierarchical prevalence over the Spanish Constitution and the Statute of Autonomy of Catalonia. This means that the separatists in the Catalan parliament are engaged in the usurpation of constitutional powers or to put it simply, a power grab or a coup d'état.
(Note: both laws have been declared unconstitutional by the Spanish courts.)

Bona fide constitutional changes are normally effected by supermajority vote. A "supermajority vote" is a vote that must exceed the number of votes comprising a "simple majority." For example, a simple majority in a 100-member Parliament would be 51 votes; while a 2/3 supermajority vote would require 67 votes. There are 135 seats in the Catalan parliament. A supermajority of two-thirds would constitute a threshold of 90 votes.

In parliamentary procedure it is common practice to require a supermajority vote for any action that may impact the rights of a minority. It is designed to protect minorities by enhancing the voting power of their representatives in parliament. Often this means one must deliberate with those minorities and gain their agreement (meaning by supermajority vote) to change basic rules. Note that changing both the Spanish Constitution and the Statute of Autonomy of Catalonia requires two thirds majorities.

The Separatist parties in the Catalan parliament adopted these two laws - which override preexisting constitutional regimes - by means of a simple majority vote. The first law was adopted by 72 votes, the second by 71 votes, both of which are less than the 90 vote threshold.

In other words, the separatists by voting to adopt the laws above violated a fundamental parliamentary procedure that is intended to protect the rights of minorities - in this instance, the rights of the opposition. The opposition in Catalonia is against Catalan independence. There are so many people (in Catalonia) that are opposed to Catalan independence that it is not possible to create a supermajority in Parliament.

Properly analyzed, the separatists, who would have been perfectly aware of the size of the opposition, decided that their cause - Catalan independence - could not be implemented unless they would deliberately violate the constitutional order. Their solution was to disenfranchise the opposition by simply ignoring proper parliamentary procedure. Riding roughshod over parliamentary procedure, the two bills involved were rushed through the parliament in one single day: without pre-processing in a parliamentary committee, without putting the reading of the bill on the agenda, without allowing any debate, and without the opposition being given the opportunity to ask the legal service of the parliament for advice.

In other words, a minimal parliamentary majority expresses its will without respecting the rights of the opposition and in violation of the law. This is how authoritarian governments silence parliamentary oppositions when processing evil laws. In fact the State Attorney (the prosecutor)described the process of forcing through the referendum law as “absolutely totalitarian.”
Concerning this state of affairs, the Spanish Constitutional Court argued that preserving ‘the political pluralism along the legislative proceedings is inherent to the respect to the position and rights of minorities…’ Furthermore it links the ‘integrity of the rights of representatives’ to ‘the fundamental right of all citizens to participate in public affairs through representatives…’

On such a momentous issue as the future of Catalonia, the actions of the separatists were entirely and brazenly partisan. Not once did the separatists seek to lift the matter above party politics. The votes above came entirely from pro-independence ruling coalition, JxS and CUP-CC. Not a single member of the opposition voted in favor of the laws. In protest against this brazen and naked violation of their rights as representatives of the people most of the opposition MP’s left the chamber before the votes were cast. This is a form of dissent that is common only in countries where democracy is under threat.
The question above is flawed. The proper question should have been:

If the separatists can get away with squashing democracy and the rule of law in Catalonia, what future awaits the EU?

This state of affairs and its proper significance has never been properly or sufficiently exposed and reported by the media to the public (in the EU and abroad). This is deeply disturbing as the events in September 2017 represent the first case of a democratic breakdown in a Western European country, after the Second World War.

Given the worrying rise in populism in Europe we should not be ignoring the events in Catalonia. Catalonia is a large modern cosmopolitan region fully representative of mainstream Western European culture.

The events have probably been ignored because it did not involve a large sovereign nation, for example France being taken over by Front National. Catalonia essentially proves that it is entirely possible to destroy democracy and rule of law in a Western European nation.

But for a functioning constitutional order in Spain, Catalonia would have been lost to liberal democracy. We should take note because this is how the populists in Western Europe will want to govern once they gain power.

Unilateral declaration of independence or pronunciamento?

The actions of the Catalan independence movement bear an uncanny and haunting resemblance to a 19th century type of coup d'état that used to be called a pronunciamento. To cite Wikipedia:
A pronunciamiento (Spanish: [pɾonunθjaˈmjento], Portuguese: pronunciamento [pɾunũsiɐˈmẽtu]; "pronouncement, announcement or declaration") is a form of military rebellion or coup d'état particular to Spain, Portugal and Latin America, particularly in the 19th century…
Generally, a pronunciamento is preceded by a period of preparation during which the organizing officers "sound out" the larger community of officers to determine if their views are widely shared. After the pronunciamiento the would-be rebel officers then wait for the rest of the armed forces to declare for or against the government.
There is no fighting at this point; if the rebellion has no support the organizers lose. They may have to flee the country or retire from the armed forces, or they may be arrested.
The laws of the 6th and the 8th of September, the execution of the referendum itself on the 1st of October and the unilateral declaration of independence (UDI) on the 27th of October jointly bear all the hallmarks of an elaborate pronunciamento. Together with the many preceding declarations and appeals to the public, these legislative machinations represent a process of sounding out society, while avoiding violence. As in the case of a pronunciamento, the separatists waited to see how the chips would fall. And indeed, when their grab for power failed they found themselves fleeing the country or being arrested. The difference in this instance is that this pronunciamento was done by civilians. Nevertheless, in either case the constitutional order gets the shaft.

The question of Self-determination

It is likely that the questioner had a different issue in mind namely the violation of the right of self-determination.

The first thing that needs to be said is that the separatists have indeed claimed that the right of self-determination has been violated. However, any such claim is summarily rendered irrelevant by the fact that there is no electoral majority in Catalonia in favor of independence. Any claim to a right of self-determination can only be actuated by an overwhelming and sustained majority in favor of independence. Furthermore, in this instance, the pertinence of the claim and the rectitude of the claimants are deeply suspect: to push through their plans the separatists sidelined the parliamentary opposition in an unconstitutional and undemocratic manner.

Finally, the right of self-determination is not applicable in the case of Catalonia. For more on this read the following section.

The Conditions for Self-determination

In the most general or abstract sense the right of self-determination supersedes constitutional law. Still, this right is entirely context-driven, which is what the Catalan separatists are hoping you will not notice.

The right of self-determination is a false claim against the Spanish constitution. Read carefully: before it can be justifiably asserted, it first has to be applicable to the case of Catalonia.
In the case of Catalonia pursuing independence, the claim of a right to self-determination must be understood as a claim to a right of secession.

Essentially, the right of self-determination, in terms of a right to independence, exists mainly to serve “the particular situation of peoples under colonial or other forms of alien domination or foreign occupation…” In practical terms, the only entities with an automatic claim the right to self-determination are the Non-Self-Governing Territories, and the Palestinian territories. The only other category of territorial entities that could easily reclaim this right of self-determination would be the various internally self-governing territories that were formerly on the UN List of Non-Self-Governing Territories and which have not been merged into the administering countries. The most important of these are Puerto Rico (US), Greenland (Denmark), Aruba (Neth), Curacao (Neth), Sint Maarten (Neth), and Cook Islands (NZ).

Concurrently, the right of self-determination is not intended “to be construed as authorizing or encouraging any action that would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States…” Read also the following UN Resolution: A/RES/50/6. Declaration on the Occasion of the Fiftieth Anniversary of the United Nations. This means that on the basis of current international law, the right to self-determination does not include a ‘primary’ right to secession. See also following link to a paper by Joel Day: The Remedial Right of Secession in International Law. Note that most separatist causes involve territorial minorities located in states that can counter claims to self-determination by rightfully asserting territorial integrity. Examples of these are Catalonia, Corsica, Lombardy, Bavaria, etc.

There is an exception to the latter case, i.e., the justification for a ‘remedial’ right to secession. This occurs when “the international community has taken the steps to endorse secession when a state commits crimes against humanity against a territorially concentrated minority.”

In international law, Catalonia is by default considered an integral part of Spain. It is not recognized by the United Nations or any other international body, as a colony or an occupied territory. There are no crimes against humanity. The right to self-determination, in terms of right to secession, whether ‘primary’ or ‘remedial’, simply does not apply. In other words, the Catalan independence movement is an instance of a political movement based on a false claim.

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