Is advocating independence only legal if you lose?

The proposed Parliamentary resolution filed by Junts pel Sí (Together for Yes) and the CUP has raised a great deal of commotion. Even before being approved, there seems to be more speculation about Madrid’s reaction than about how to successfully achieve the main goal that motivated it: the creation of a Catalan state.

Why does this come as a surprise? For the past five years, Catalonia has been completely mobilized: periodic demonstrations by millions of people, civil society taking the lead with an exponential multiplication of pro-independence associations -- some of them gigantic--, and a complete remodeling of political parties to adapt themselves to the pro-independence phenomenon. To say nothing of two general elections for the Catalan Parliament in the last four years, from which outright parliamentary majorities emerged in favor of the right to self-determination in 2012, and independence in 2015.

The proposed resolution is simply the consequence of the parliamentary mandate received by those groups who now hold an absolute majority in the Catalan Parliament. The 72 pro-independence seats (out of 135) were elected to defend a roadmap that was presented in the elections, and restated, verbatim, in the draft text presented. Specifically, it talks about making a solemn declaration of the beginning of a process to create a Catalan state, opening a constituent process, urging the Catalan government to take measures to make it happen, forging ahead with state structures such as social security and a public Treasury Agency, and declaring the start of negotiations with Spain, the European Union, and the whole of the international community. It’s true that sections six and eight call for following only Catalan law and not being subject to the decisions of Spanish institutions, which can be considered the result of recent actions by some institutions perceived as having little or no respect for laws emanating from the Catalan Parliament, beginning with the ruling against Catalonia’s 2010 Statute.

Some people ask: how did we get to this point? Well, because the people voted for a majority in Parliament that thinks this way, with a majority of forces that have a mandate to lead the nation to independence. Why haven’t they been put in prison before this? Because for a long time --since the nineties-- the European Court of Human Rights (ECHR) has produced a constant and repeated body of legal rulings establishing that pro-independence and separatist parties cannot be prevented from running in elections. The reason, according to the EHRC, is that there is no democracy without pluralism, and that this is a "collective exercise of freedom of expression", to the extent that one of the main characteristics of democracy resides in the possibility that it offers for debating, by means of dialogue and without resorting to violence, any questions raised by diverse currents of opinion, even when they are bothersome or disturbing. Including secession.

The Spanish government itself argued before the European Human Rights Court that its 2002 law on political parties (1) did not contravene the European Convention on Human Rights because there were parties in Spain that ran in the elections with pro-independence platforms. Indeed, this was a decisive point in assuring that the Spanish law was not annulled in the ruling by the EHRC on 30 June 2009.

Ergo, if it is legal for political parties to run in elections advocating independence, then if this ideology receives a majority of ballots, surely it must also be legal to make it a reality. Or is it only legal so long as they don’t win?

The legitimacy of an electoral body that peacefully demands independence must be respected because it comes out of the freedom of expression as a people that is recognized by both domestic and international law. This was understood by Canada with respect to Quebec, and the United Kingdom with respect to Scotland. Territorial unity and veto rights by one group over the will of a people is not a fundamental right anywhere. The rule of law is built upon the rights of citizens; otherwise, it is not a true rule of law, merely an appearance with no legitimacy.

This is not a case that can be resolved by applying the letter of repressive laws, but only with the overriding principles of our legal system, which are those that rule and must rule in all democratic societies. The draft resolution filed in the Catalan Parliament is transparent. It expresses the ideology of the majority and a parliamentary mandate. It states what the Parliament intends to do. The Spanish government will be making a mistake in attacking it, instead of working on it and taking it into consideration. In the same way that the suspension of the independence resolution of January 2013 did nothing to stop the plebiscite elections and the exercise of the right to decide, a hypothetical suspension of the proposed resolution would do nothing to avert the independence process. Ideas and popular will cannot be suspended.


(1) N.T. This is the legislation that effectively outlawed the political wing of Basque armed group ETA.