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Comment by ricardbejarano | Hacker News Reader

The thing is, the government can't let a "comunidad autonoma" organize a binding referendum about a region's secession of Spain, because that would put the region's sovereignty on the region's people, and that's against the Spanish constitution (art. 1.2, the sovereignty of the entire Spanish territory is of all Spanish citizens).

That also infringes Spanish constitution's 2nd art., "the Constitution is fundamented atop the indissoluble unity of the Spanish nation".

It's not that they "should have let them vote", it's that they can't, unless the Spanish citizens reform the constitution and remove those articles.

The separatist movement is blocked in that regard, and unless all other UN countries were to recognize Catalonia as an independent state, they are locked in as a "comunidad autonoma" until a constitution reform happens.

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And yet, doesn't this violate the principle of self-determination? If the people of a region want to create a separate region, who is to tell them not to? Catalonia now needs the permission of the others to leave?

It seems as though the Spanish constitution was written for the primacy of a centralized state, rather than federated government down to the individual. I suppose the idea that sovereignty is effectively granted by the central state is a result thereof. Maybe reforming that would be a good first step.

I can count with one hand the amount of state constitutions that allow the sudden declaration of independence of a part of their territory.

Self-determination is a right you reject when you step foot on Spain (and practically every other country).

We might have to change that, I don't know, but the Spanish constitution is no fascist rule, or else almost all modern democratic states are, too.

It is very complicated.

Is it? The UK allowed Scotland to decide and it's been peaceful. Also, isn't the relevant section of the Spanish constitution from a fascist era?

Regarding the UK, they might be the only democracy with that prerogative since they don’t have a codified constitution beyond the Magna Carta*

* Please don’t quote me on this since it’s been 12 years I did constitutional law

Very many constitutions are actually silent on secession.

I am from Australia. To my best recollection, Australia's constitution never mentions the topic of secession, neither positively or negatively. But, territories of Australia have become independent before. Same is true of United States.

But, some will say a territory is not fully integrated, unlike a state or province, and a state or province would be different.

People say the US constitution doesn't allow secession of a state (as opposed to a territory) without a constitutional amendment. Not directly, but indirectly it does:

1. It is accepted that a territory (as opposed to a state) can secede and become a new country with consent of Congress

2. The US constitution allows a state to surrender some of its territory to the federal government (most obvious case is District of Columbia, but actually a lot of the Midwestern states were formed out of territory originally surrendered by the Eastern states which used to be a lot bigger than they are now)

3. So, a state wishes to secede could surrender all its territory to the federal government, and then Congress allows that territory to become independent.

Objection: States can only surrender some of their territory, not all of it.

Reply: Even if that is true, there is a workaround. Two states are allowed to merge with consent of Congress and their state legislatures. So, seceding state could merge into a neighbouring state, and then the new state would surrender the former territory of the seceding state to the federal government, and then Congress would grant that federal territory independence. (This would of course require the cooperation of a neighbouring state, which might be thought unlikely, but maybe not impossible – the neighbouring state might be pleased to see the seceding state go; the seceding state might sweeten the deal somehow by letting the neighbouring state keep part of its territory.)

Of course, the US Supreme Court might decide this is against the "spirit" of the US constitution. But they aren't compelled to conclude that it is against the letter. Strict constructionism would suggest this would be constitutional.

> People say the US constitution doesn't allow secession of a state (as opposed to a territory) without a constitutional amendment.

Congress granting a territory (or state, directly) independence isn't secession, whether or not it is allowed. Secession is unilateral, grants of independence are a different thing.

I don't know if that is the key difference here.

Madrid insists they couldn't allow Catalonia to become independent even if they wanted to.

Many people in Spain outside of Catalonia are resolutely opposed to Catalan independence, under any circumstances. By contrast, most people in UK outside of Scotland don't really care, and even the vast majority of those opposed to it would be willing to accept it if a referendum voted in favour. (Even those opposed to a second independence referendum, their argument is "too soon" rather than "never again"). In this regard, Spain is culturally more like China than the UK – pro-Beijing people get terribly upset at the idea of any territory claimed by the PRC ever becoming independent of it.

> Madrid insists they couldn't allow Catalonia to become independent even if they wanted to.

Which may or may not be a correct interpretation of the Spanish Constitution, but what the US Constitution does or does not allow regarding either secession or Congressional grants of independence is not really germane one way or another. They aren't even products of the same legal tradition such that analysis of one might be illuminating on the other.

Spanish opponents of Catalan independence repeatedly use the argument "Our constitution doesn't allow a part of our country to become independent; but in that regard our constitution is no different from those of many other countries".

So the question of what other countries' constitutions allow is relevant to the debate.

And the comment I was initially responding to was suggesting that the UK could only allow Scotland the choice of independence because it has an unwritten constitution. Explaining how other country's written constitutions could allow grants of independence to parts of the country is a relevant response.

No, current constitution was redacted after the death of the dictator. There were mainly seven people involved in writing it. Between them, there was a communist, a socialist, a representative of the Basque and Catalan minorities, and only one who came from previous governments during the dictatorship. By the way, two of these seven people (the communist one and the representative of Basque-Catalan minorities) were from Catalonia (this is almost the perfect proportion taking into account the fraction of Spain that Catalonia represents, but if you know that Spain has 17 autonomous regions, it is obvious that Catalonia was not misrepresented).

You will read several comments here saying similar things (I have read something like that this constitution was only voted because the only other option was another war), but it is simply not true, as you can easily check in any independent source.

The current Spanish constitution was voted with more than 90% of support in Catalonia. Should that not count as self-determination?

The current Spanish constitution was drafted by a process heavily dominated by members of the former Francoist regime. The Spanish people were never formally asked "What sort of constitution would you like?" They were asked "Would you like a democratic constitution or not?" And I think a lot of people voted 'yes', whether or not they liked the constitution on offer, but simply because they wanted to ensure the return to democracy and the end to dictatorship was solidified. A fairer process of drafting a constitution would have produced a very different document.

If a dictatorship offers people democracy on its terms, people will accept it. But, was their choice really free? Would they have agreed to the same terms if the threat of dictatorship wasn't there? (1978 was only three years after Franco died, Spanish democracy was very young, and it was entirely believable in 1978 that it might not have lasted.)

The committee of 7 people that drafted the constitution included people from very different ideologies, for example a former member of the Franco government, a Catalan member of UCD, a Catalan nationalist, a socialist or a Catalan member of the communist party and they all agreed on the text that was voted. Were they all dominated by the Francoist regime? By that time Spain had already had democratic elections so, if that text were rejected the result would be to restart the constitutive process, not to go back to the dictatorship.

Ultimately we need to answer one question: is the current Spanish Constitution democratic or not? if it is, it does not matter how it came to be. Any changes could be done by a democratic process. If it is not, then all the Spanish citizens are affected and a whole new constitutive process is needed where all the citizens vote, not only Catalans.

Not sure how many constitutions around the world have a "Secession Procedure" section, but I suppose not too many. I know UK sort of has one in its "unwritten" constitution. I understand that Spanish government cannot simply ignore the constitution and must do something, I'm sure they could have come up with a better something...

I expect in vast majority of cases of gaining independence from a country with existing constitution it wasn't something along the lines of: "OK, so you want independence? Fine, just wait a bit until we change the constitution". Then again, and sadly, it probably wasn't happening without violence either.

Here's a list of unilateral declarations of independence, some more successful than others:

https://en.wikipedia.org/wiki/Unilateral_declaration_of_inde...

And let's not forget that a lot of cases of gaining independence happened after someone lost a war. Maybe let's not go there?

It didn't have to be binding, just advisory or symbolic with no action to be taken. It might have prevented most of the current situation if the result had been to remain (which would have been most likely, back then, now I'm not so sure). If it had been independence I suppose we would be in a very similar situation.

We had a non-binding referendum on November 9th, 2014, with 90% saying yes to independence, but 37% voter turnout.

Then an illegally-binding referendum was organized by the Catalan government on October 1st, 2017. The result was 90% leaves, but yet again, 43% voter turnout, and there were no democratic guarantees, as some people were caught voting multiple times, the census was obtained illegally, etc.

After that illegal referendum, the Catalan government decided to secede and declare independence. That's why they were prosecuted and recently convicted. Declaring the independence of a part of Spanish sovereign territory is explicitly forbidden under the name of "secession" in Spanish constitution, and because it goes against the nation's own sovereignty it is considered a very serious crime, that's why they were convicted up to 13 years.

From my POV, as a Catalan citizen, this is ordinary application of law, the law that we all agreed upon in the first place, and the riots and violent scenes seen recently are simply caused by a minority of the pro-independent minority which want independence at all costs, and police forces can't allow that, thus, conflict.

Fair enough, but they could still have campaigned against secession and declared any referendum void. They probably could have managed it better than send armed police to confiscate the ballot boxes.

Compare Spain to Iraq. Around the same time, Iraqi Kurdistan had a referendum on independence. The Iraqi central government declared it void. But they didn't make any physical attempt to stop it.

The Spanish central government and court system didn't have to try to physically stop the referendum. They could have just declared it illegal but then ignored it rather than seeking to physically prevent it. They could have followed the same approach as Iraq. They chose not to. Likewise, rather than imprisoning those who declared unilateral independence, they could have just declared the act legally void and then pretended it never happened.

Governments (and judicial systems) always have discretion about enforcing the law. A wise government knows when to step back. A foolish government demands it be enforced 100% of the time. (And I guarantee you, that there will be other issues, on which the Spanish government and judiciary make no such demand for 100% enforcement – prosecutorial discretion exists in every country, Spain included.)

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