When is Something Illegal Actually Legal?

When is Something Illegal Actually Legal?

When the bigger guy says so.

Footnote: Human rights can never be illegal.

All the world seems to agree that for Catalans to vote on a referendum to see if the majority does or does not want independence is illegal.  Everyone says this because it is Madrid’s mantra that no one questions.  Madrid says that a referendum is illegal and secession is unconstitutional.  And given those two points, it is not possible to vote on them or to discuss them because you cannot talk about things that are illegal and unconstitutional.

I’m no legal expert.  I’ve never taken a law course.  But I read and I listen and I try to apply logic to the statements and arguments I hear.  And there are two things I don’t hear often.  One is that voting is the basis of democracy; without it there is no democracy.  So the legitimacy of a country that says that voting on a referendum is illegal should be questioned.  The second is that local laws are overridden by state or national laws, and national laws are overridden by international laws.  So what do international laws have to say about the Spanish law?

Within Spain, there have been dozens of laws recently passed by the Catalan parliament that were overridden by Spain – laws that included the protection of unemployed or poor people from having their gas or electricity turned off in winter months for non-payment; a tax on bank owned repossessed properties in order to pressure the banks to make the properties available for rent in an inadequate housing market; the prohibition of fracking; the outlawing of bullfights, and more.  In all these instances the laws were overturned because either they gave Catalans better protections than other Spaniards enjoyed, or because it was said that it was not within the jurisdiction of the Catalans to pass such a law.

Since the very beginning, six years ago, when Catalans began to have huge mobilizations that numbered from 1 to 2 million people each year on their National Day, 11 September, demanding the right to vote on a referendum to ascertain what percentage of Catalans wanted independence, the Spanish government always responded that a referendum was illegal.  After a few years of these massive demonstrations (2 million people demonstrating out of a population of 7.5 million is an impressive number of people) the topic started to come up in E.U. discussions.  And the response there was always the same.  This was an internal matter for Spain to resolve.  When Catalan leaders arranged an informal, non-binding consultation to see what the citizens wanted, they were accused of illegal activity, banned from holding public office, and now face disobedience and other charges as well as having their private property – bank accounts and homes – seized by the Spanish state.  Knowing this, the E.U. continued to maintain that it was an internal matter.

More recently when tensions rose to new heights and violence erupted on the part of Spanish police against peaceful citizens, the position of the E.U. was that it could not condone the Catalans voting on a referendum that was illegal by Spanish law (also mumbling something about too much use of force on the part of the police).  Virtually all international media condemned the violence in stronger terms than the E.U. did, saying it was disproportionate and too brutal, but everyone still assumed that the vote had been illegal.

However, just as Spain can legally override Catalan laws, so Europe’s laws override the laws of their member countries. 

The E.U. was created after World War II in order to prevent violence among the peoples of Europe.  It has strong guarantees of consumer protection, workers’ rights, and human rights.  These are codified in the Lisbon Treaty, incorporated into the Charter of the Fundamental Rights of the European Union, and are part of European Union law.  They include

Article 1: The Right to Human Dignity
Article 6: The Right to Liberty or Security of Person
Article 11: Freedom of Expression and Information
Article 12: Freedom of Assembly and Association
Article 54: Prohibition of Abuse of Rights

Articles 11 and 12 were violated with the charges against the Catalan leaders who arranged the informal consultation, and all of these were violated when Spanish police confiscated voting materials as well as mail and publications of non-profit pro-independence groups, and attacked peaceful citizens who were trying to protect voting boxes and cast their ballots.  Craig Murray, author, broadcaster and human rights activist, former British Ambassador to Uzbekistan, and former Rector of the University of Dundee recently wrote: “The European Commission is obliged to abide by this Charter by Article 51. Yet when the Spanish government committed the most egregious mass violation of human rights within the European Union for a great many years, the EU Commission deliberately chose to ignore completely its obligations under the European Charter of Fundamental Rights in its response. The Commission’s actions shocked all of intellectual Europe, and represented a complete betrayal of the fundamental principles, obligations and basic documents of the European Union.”  (See full article here.)

And that is not all.  The fact that police were attacking European Union citizens (as all Catalans are) who were exercising their right to freedom of expression and freedom of assembly, among other rights, is not the end of the story.  The laws of the European Union are also subject to being superseded by the laws of the United Nations.  Article 1 of the U.N. Charter of the United Nations says that people have the right to self­-determination.  “Article 1 (2) To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.”

So this “illegal referendum” that the Catalans risked their lives to vote on is legal under the Charter of the U.N., and the police brutality against non-violent citizens, plus the confiscation of voting boxes, ballots, any referendum-related material, as well as letters and publications sent through the mail that had been confiscated by the Spanish police were violations of the European Charter of Fundamental Rights.

So when you read that the referendum was illegal, stop and think even if you never heard of the European Charter of Fundamental Rights or the Charter of the United Nations.  What is the basis of democracy if not voting?  That should be enough to tell you that no democratic country can make voting illegal and still be called a democracy.  The international press has either been too lazy to research, incapable of thinking logically, or has taken sides and is not interested in providing the public with a rounded view of an important crisis.  And the European Union has failed miserably in upholding the rights it is supposed to guarantee to all its citizens.  Maybe tomorrow, or one day soon, they will. 

Photo from public source