Et the Internet, Spain?

The budding constitutional crisis in Spain over Catalonia’s secession/independence referendum is a near-perfect example of the hallmark of our times: issues that escalate for no good reason other than the sheer fuck of it. The latest brick in the wall is attempts by Spanish authorities to shut down websites reachable on .cat TLD urls that contain any information about the 1 October referendum. It’s a stupid thing to do from almost any viewpoint. As a pracitcal matter, it makes no sense: separatist sites can just pop up on other TLDs that are managed outside Spanish jurisdiction. If you’re the national police trying to crack down on a referendum, wouldn’t you prefer to leave the sites where you already know they are so you can easily monitor them? As a PR matter, it’s a disaster. The last thing you want to be seen as by netizens is a censorious bully. As a legal matter, it’s insidious. Spain has never been a bright light for speech rights, and even before the referendum the situation with speech rights had been deteriorating rapidly. But even in repressive Spain it’s not clear that censoring sites that merely contain information about an illegal referendum is kosher. The government has broad authority where terrorism is involved, but unlike the Basque Country, Catalan terrorism is practically nonexistent in the post-Franco era and has, in any case, not really been a feature of this referendum movement. No doubt the government can spin all this as "terrorism" to a sympathetic judge, but then that is the problem – an ambiguous situation gets resolved in favor of the more repressive interpretation. (This is, of course, yet another example of why it’s important to draw a clear line defending the speech righs of nazis here at home, even though we don’t like them or what they’re saying one bit.)

What’s completely baffling about all this to me is that from moral, legal and practical standpoints it’s clear that the referendum is indefensible. The Spanish government is in the right. It’s not that Catalonia has no legitimate complaints, but this isn’t the way to address them. Polls do not show majority support for secession. The Spanish Constitution and all subsequent agreements between Catalonia and Spain make it clear that secession is illegal. All such agreements, including the ratification of the constitution, were passed by clear popular majorities in Catalonia. The current Catalonian regional government used underhanded – at least one of which is outright illegal1 – parliamentary tactics to put forward the bill authorizing the referendum, so it’s not solidly rooted in democratic process to begin with. And the biggest howlers of all are that the Catalonian Government claims that (a) only a bare majority is needed to approve the motion, (b) there is no minimum participation rate for validity and (c) Catalonia will declare independence within 48 hours of receiving a "yes" vote – all of which are obviously ludicrous. You can’t make permanent, unilateral constitutional changes on the basis of a mere 50% plus one vote, ESPECIALLY if that isn’t even guaranteed to be a majority of the voting population, and you certainly can’t consider such a thing legitimate if there is no process in place to even achieve independence. The current Catalan government is a minority coalition government with only a paper-thin majority. This is NOT the profile of a group that has a mandate to make decisions "within 48 hours" of a "yes" vote that will determine the character of the (entirely hypothetical, since it will ultimately not be allowed no matter how the population votes) new nation. And this is all not to mention that there is simply no way, from a logistical viewpoint, to hold a legitimate vote when the central authorities are doing whatever they can to shut it down. It’s hard enough to certify elections as free and fair under ideal circumstances.

People in favor of the vote tend to argue that the Catalan people have a right to self-determination. But such rights have to end somewhere. If Catalonia votes to seceed, can the approximately 50% of the population that has one or both non-Catalonian parents turn around and seceed from Catalonia and rejoin Spain? Specifically, can Barcelona, where the percentage of such people is much higher than average in Catalonia? You can say I’m indulging in slippery slope arguments if you like, but not until you tell me where, exactly, the democratic legitimacy of the vote comes from in the first place. Who are "catalonians" who have this "right to self-determination," and how do you know? Notice that it won’t be enough to say "the majority that voted for the current government," since (a) the current government is not a majority government and (b) you’d be cherry-picking your years: plenty of other elections have not gone for this constellation of coalition partners. There’s a reason referendums like this one can’t be ordinary majority votes decided by ordinary 50-plus-one majority bills. Governmental persistence beyond momentary popular whims is of fundamental importance.

But that’s why the Spanish reaction is so frustrating. It seems like this referendum is doomed to fail no matter what. If it’s held, it seems unlikely a majority will vote "yes." If a "yes" vote goes through, it seems even more unlikely that the result will be seen as legitimate, even in Catalonia. Certainly it will never be seen as legitimate outside Catalonia – not by anyone who matters. It’s clearly unconstitutional, and in any case there’s no legal path to membership in the EU for Catalonia so long as Spain (and France, which has Catalan-speaking regions of its own, not to mention Corsica) exercise veto powers over membership. It seems so much smarter for Spain to just be quiet about the whole thing. Having the Constitutional Court declare the vote illegal was the right move, and it probably should have stopped with that. Raiding government offices, shutting down internet registrars, all that jazz just makes Spain look repressive and undemocratic, even though it isn’t at all. I understand that the central government has a legal obligation to uphold the constitution – that’s what it’s there to do. But there are some methods of doing that that make it more likely that the whole thing will blow up, and that’s more or less what Spain is doing.

Catalonia has no right to seceed. Spain is in the right here. The vote IS illegal. But there are ways of doing the right thing that are wrong. Spain needs to be careful not to chase pyrrhic victories. I have no doubt they can squelch this particular vote, but if they keep being silly about it, they make future unrest more, rather than less, likely.


    • MPs opposed to the bill demanded, and were never given, an opinion of the Council of Statutory Guarantees.

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