Democracy is not, and it surely never was, the simple and pure act of voting. The periodical election, by the people, of their representatives trough universal, direct, free and secret suffrage (all of the adjectives are crucial) is only one amongst the few but indispensable elements of any democratic and pluralistic nation. The sole act of voting does not guarantee the separation of powers, the respect of the fundamental rights of the citizens or the submission of the public authorities to the rule of law. It does not, certainly, guarantee the rights of whatever minorities against the so called “Tiranny of the Majority” which the founding fathers of the United States anticipated and tried –in my view succesfuly- to prevent. It does not, either, set forth the necessary checks and balances to avoid where, following Lord Acton, absolute power “corrupts absolutely” the power-bearer, leading the way to an Elective Dictatorship (Lord Hailsham).
How to prevent the advent of the “Tiranny of the Majority”, where the many leave no space for the free development of the few? How to avoid an Elective Dictatorship, where the democratically elected rulers yield absolute and unchallenged power, ignoring the democratic rights of their citizens? The only answer, brought forward in History by the United States’ Constitution in 1787, is the approval of a Constitution –written or not-, a basic pact or “social contract” (Rousseau) setting the minimal and fundamental rules of democratic coexistence of a people. In this document, two aspects are, indeed, unavoidable: (i) the separation of powers, established as an internal limit to absolute power and (ii) the recognition of fundamental rights of the citizens as an insuperable limit to the action of public powers.
A Constitution is, thus, a contract where a Sovereign people (the constituent power) creates a series of democratic institutions (the constituted powers) together with rules to their democratic functioning, with the mission to act in their name in the pursue of their best interest and the sole limit of their inalienable fundamental rights. What was the probability of the human kind ever arriving to such a “beautiful, paradoxical, elegant, acrobatic and unnatural thing”? Not much certainly in Ortega y Gasset's view, which explains its pessimistic prospects when he sadly concluded that “it must not be surprising that that same species [the human kind] soon will appear determined to abandon it”.
There is an essential guarantee for the survival of any Constitutional democracy: the Supremacy of the Constitution as a source of law (which was invented in the US but assumed and perfected by continental Europe in the crisis of the liberal state, as a counterbalance to the rise of populist fascist and socialist regimes). In simple terms, the submission of every individual or public authority (constituted power) to the Constitution, which can only be modified by its own participative, democratic and representative proceedings, involving a wide overall majority of the citizens in favour of the reform. This is an essential pillar of Democracy, for no matter how strong or intensely a number of citizens desires any change (whether a positive –civil rights- or negative one –take your pick-), the main rules of the democratic coexistence of society can only be modified with the assent of a vast majority of it, mobilised to that end.
Having said this, it is time to descend to the relevant news of today. The Sentence passed today by the Supreme Court of Spain, which convicts the actions of the political leaders of the independence coup in Cataluña in 2017 is, in no way, an undemocratic exercise. It is, on the contrary, the very case of Democracy defending itself.
Some basic facts: Catalonia is a rich developed region of Spain, of which its capital (Barcelona) is the largest city ashore the Mediterranean Sea, its GDP per capita being way above the nationwide average. With a co-official language (Catalan) which is part of our common Spanish heritage (art. 3 of the Constitution) and its recognition the envy of much European regions (v.e. France), their territorial representative institutions hold wider competences than much of the federated states in Europe.
Catalonia, as most of the rich non-capital regions of Europe (it is, indeed, a continental-wide phenomenom) has its own nationalist movement, which proclaims their superiority over the rest of the country and, demanding unsolidarily economic privileges over less developed regions, has permanently obtained advantages by critically deciding, over decades, the governmental turnout of elections in the national Parliament in Madrid.
Lets get political. Catalonia’s present pro-independence Government was elected by a minimal majority of seats in the Parliament that, nonetheless (because of the effect of a twisted electoral law that over-represents the rural Catalonia) stands for less citizens than the pro-spanish opposition. The biggest party in its Parlament (the regional parliament) is Ciutadans, a firm non-independentist party. The majority of the population of Catalonia declares itself against the independence of the region (in the best polls of Generalitat’s statistical institutions, it reached 48%), and the minimal majority of pro-independence-over-represented seats does not reach, by far, the majority required to reform even its own Statute of Autonomy (2/3 of the Parliament). In the other hand, the approval of the Spanish Constitution in Catalonia was above the nationwide average in 1978 (92% votes in favour and more than 60% of the overall population behind it).
The Spanish Constitution, besides, does not have material limits, which allows –provided an enhanced majority of the people agrees- for a reform of the “indissoluble unity of the Spanish nation” (art. 2). There is and was, thus, a legal path to follow for the Catalan pro-independence followers. A similar reform is expressly forbidden in countries like Germany, France or the US, where a pro-independence movement does not even have –and allegedly never will- a legal pathway for their political positions. Furthermore, in Portugal or Germany a political party with a political programme for secession –an unconstitutional goal- is not even permitted to run for elections. In Portugal, a regional party is not even allowed to run for national elections.
With an excuse in the economic crisis of 2008 that struck hard the Spanish economy, the nationalist party (now extinct) then governing Catalonia –CiU- with terrible scandals of corruption affecting their leaders and the responsibility over the massive debt of the region due to irresponsible managing, promised (in a Brexitlike fashion) a cascade of wealth with an eventual independence. Notwithstanding the important question of how a pro-independence 27% of the people of Catalonia suddenly escalated to 48% of the population, which I treated in some past articles, (*) the fact that the pro-independence movement has never reached even 50% of the population is an objective truth as the Sun rising east and setting west.
In this scenario (that is, (a) having the legal right to defend politically their positions, run for elections and even reform the Constitution to allow for a future independence of Catalonia, and (b) furthermore, not even holding enough majority to reform Catalonia’s main law, the Statute of Autonomy) in 2017 a mobilised minority of Catalonia’s representatives approved “disconnection laws” in order to illegally separate the region from the rest of Spain, holding an illegal referendum declared so by the Constitutional Court (like in the cases of Texas in the US, Babaria in Germany or Veneto in Italy, with the sole difference of the open disobeyance of the Court) in which not even half of the population participated, and after several warnings and violent encounters, declaring unilaterally the independence of the Region. Tribunal Superior de Justicia de Cataluña started then the prosecution of the political leaders which lead, finally to the convictions in the Sentence of the Supreme Court published today.
What in every civilised country is considered a crime (that is, attempting to illegally substitute the democratic constitutional order, approved by the people’s sovereignty, by illegal means) is nonetheless still defended by the pro-independence Catalan leader Carles Puigdemont, who considers the Sentence an attack to “democracy” and human rights, or a conviction of the former leaders "for their ideas”; in all, the evidence of “political repression” in Spain. No mention by Mr. Puigdemont, as expected, to the unilateral attempt, by a constituted power representing a minority, to illegally derogate and substitute a constitutional order without the strength to reform the Constitution by its regular and democratic proceedings. Have we gone mad?
