Should Trudeau admonish Spain for prosecuting Catalonian leaders?

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Catalonia's declaration of independence from Spain on October 27, 2017. Photo: Antonio Litov/Fotomovimiento/Flickr

The crisis in Catalonia poses an awkward challenge for Canada.

It is easy for Canada to follow the herd — that is, everybody — and side with the national Spanish government. Canada can blithely take the position that the Catalonian referendum on independence has no meaning. Canada recognizes only one, united Spain, full stop. Others might talk about self-determination; the Trudeau government only talks of legality and respect for Spanish, not Catalonian, sovereignty.

The sticky part, for this country, arises out of the fact that the official Canadian stance toward referenda on independence and the possibility of secession is entirely different from Spain’s. It is perfectly legal and constitutional in Canada for a province to hold a sovereignty referendum. And it could be equally legal for that province to secede.

In 1997, the Supreme Court of Canada issued a landmark decision on the right to secession, to which the federal government’s response was the Clarity Act. Both the decision and the Act state that there are circumstances under which the federal government would have to accept the democratic legitimacy of a provincial referendum on independence.

Both also say that a simple majority for the “Yes” side might not be enough, although the key word is might. More important, however, both the Court decision and the Act unequivocally affirm that a “clear” majority for “Yes” on a clear question would, at the very least, oblige the federal government to enter into negotiations with the province seeking to secede.

We’re not sure what a “clear majority” would mean in practice. The NDP says it would be 50 per cent plus one. Others prevaricate. That is an argument for another day.

Chrétien was tough on separatists, but nothing like Spain today

Canada came close to a real-life secession experience in 1995, and only missed by fewer than 50,000 votes. A new book, some of which has been excerpted in the National Post, claims that if the “Yes” side had narrowly won back then, Prime Minister Jean Chrétien would not have recognized the result. He would have justifiably argued that the referendum question had been exceedingly unclear and confusing. Ergo, there was no way to tell what those who voted “Yes” believed they were voting for.

Chrétien’s strategy would have been to hold his own referendum, with an unambiguous and simple question — something like, “Should Quebec separate from Canada?” He was confident Quebeckers would not choose “Yes” if the choice was so stark.  

For a Canadian federal government, pursuing such a course would have been a hardline, uncompromising response. But it would have been mild compared to what the Spanish government just did. It is impossible to imagine any Canadian government denying the legality of even holding a referendum, attempting to stop it by force, then removing the elected sovereigntist government from office, and finally, to top it all off, initiating criminal proceedings against elected provincial leaders.

The two countries have very different political systems, of course.

Canada was founded, in 1867, as a voluntary federation of four, distinct entities – which grew, over time, to 10. The current Spanish constitution dates back to the death of the dictator Francisco Franco in 1975. It envisions a unitary Spain, although it grants minority and language rights to nationalities Franco had persecuted, notably the Catalans of the northeast and the Gallegos (or Galicians) and Basques of the northwest.

Over time, the Spanish national government has negotiated 17 “statutes of autonomy,” which grant varying degrees of self-government to its regions. No two are exactly alike, but the regions in which the minority nationalities are concentrated have the greatest degree of autonomy. 

In Spain, the rough equivalents of what we call provinces and the Americans call states are “autonomous communities.” Those communities are not, and have never been, full and equal partners with the national government. Nonetheless, they do have their own elected governments and can control many important matters, such as transport, health, tourism and social assistance.

Criminalizing peaceful political activity

The Spanish national government exercises a kind of noblesse oblige with regard to the autonomous communities. It grants them powers that are not theirs by right. In federal countries — such as Canada, Australia, Germany, India and the United States — the powers of the states or provinces are defined and protected by the constitution.

The central government is still very much in charge in Spain, although any given Spanish government’s approach would likely depend on its political orientation. The current conservative Spanish government has chosen the iron fist approach. If other Spanish parties were in power they might be more flexible and accommodating.

In a sense, none of this is Canada’s business. No Canadian government would welcome foreign advice as to how to deal with its provinces. Where the Spanish government may have crossed a line, however, is in criminalizing political behaviour.

Spain plans to put the democratically elected leaders of Catalonia on trial for what it calls the crimes of “sedition and rebellion.” There are disquieting echoes in that move of Franco’s brutal and repressive dictatorship, which ruled Spain for more than 35 years.

Canada has much experience with political actors who peacefully and democratically advocate secession (as opposed to the few who have used violence). As a rule, the Canadian federal government’s approach has been to allow the democratic process to take its course, eschewing repression or legal sanctions. The signal exception was the use of the War Measures Act in 1970, which is now widely viewed as an overreaction to two politically motivated kidnappings.

In light of this country’s experience, the Canadian government has the right to gently suggest to its Spanish friends that while it supports a unified Spain it worries about imposing criminal sanctions on elected leaders for their peaceful political activities. Such a course of action, Canada could suggest, would likely constitute a violation of basic human rights.

Canada was quick to condemn Venezuela for its notional violation of human rights, when the Venezuelan president, Nicolas Maduro, virtually replaced the opposition-dominated elected parliament by a new constituent assembly packed with his own loyalists.

Unlike economically troubled Venezuela, Spain is a wealthy member of the European Union, with which Canada has just signed a major trade agreement. That does not, however, make what the Spanish government is doing with regard to the Catalonians right — or democratic. Is Canada consistent and principled enough to say that to the Spanish government? 

Photo: Antonio Litov/Fotomovimiento/Flickr

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