Somebody needs to enroll the entire Spanish government in a remedial course in Canadian constitutional history – pronto.
The sight of Spanish police storming polling stations in Catalonia, and beating would-be voters to stop what the central government declared an "illegal" independence referendum, has turned an old political dispute into a potentially fatal crisis for Spain. The outrage against Madrid's overreaction has radicalized people on both sides of the issue, polarized society, and given a huge and likely permanent boost to Catalonia's independence movement. Spain may not survive.
If only Spanish Prime Minister Mariano Rajoy's government had a Canadian in the room. No country has more experience managing independence movements and referendums, legally and peacefully.
There were many moments in the last half century of Canadian history when an intemperate overreaction from federal leaders could have escalated things to a point where the country would have been unable to recover.
Instead, from Pearson to Trudeau and Mulroney to Chrétien, Ottawa sought to derail the indépendantistes by every means at its disposal – reason, passion, concessions, firmness, money, the law – except one. Ottawa never tried to crush it by force. It beat the sovereignty movement with patience, not truncheons.
The Spanish government, in contrast, lost patience and turned a political argument into a police action.
Madrid had every reason to oppose the referendum and to reject the result, given that among other defects it had only a 42-per-cent turnout. Many of those opposed to Catalonian independence boycotted the vote, believing it to be illegitimate. Madrid is under no legal obligation to recognize the outcome – but by sending in the police to stop the voting, instead of calmly declaring that it would not honour a referendum under these circumstances, the central government blew it.
Instead of strengthening the country, it has undermined the case for unity. It has created a situation where people increasingly feel they must choose between Catalonia or Spain.
Consider how a similar situation would likely play out in Canada. Imagine if the Parti Québécois were to once again form government in Quebec – as it one day likely will. Now imagine the newly elected PQ were to announce plans to hold another referendum – again, a likely scenario. How would Ottawa react?
In past referendums, federal leaders took part, backed the "No" side, and campaigned against the sovereigntists. Ottawa effectively accepted the legitimacy of the vote, though both the federal and Quebec governments were unclear about what they would do in the event of a victory for the "Yes" side.
The near-death experience of 1995 prompted Ottawa to clarify the rules. In a future referendum, the federal government, taking its cue from the Clarity Act and the Supreme Court, would scrutinize the referendum question; it would not accept it as a given, as in the past. But if Ottawa objected to the question, the method of voting, or anything else about the referendum, it's difficult to see it sending in the RCMP or the army to seize ballot boxes or shutter polling stations.
If a provincial referendum in Canada were conducted under unacceptable circumstances, or delivered an unclear result, Ottawa could simply ignore the result. Which is what Madrid should have done.
It's almost impossible to imagine Ottawa using force to stop a provincial vote from taking place. It isn't how our political culture works, in part because it isn't how Canadian federalism works. The federal government is not supreme over the provinces in all things; instead, the constitution confers particular powers on each.
Canada is a federal state, and a highly decentralized one at that. And because we've been a federation for 150 years, its habits have been bred into the country's political bones.
Spain's federalism, in contrast, is newer and weaker. The limited autonomy of regions like Catalonia is officially not even a type of federalism, in which sovereignty is divided among levels of government. That may be why Madrid decided it had every right to send in police to close down polling stations. It thought it had the law on its side; it certainly had the instruments, in the form of a national police force with large detachments based in and sent to Catalonia.
Ottawa has never been able to simply order the provinces to do what it wants; that's not how our Constitution works.
When the War Measures Act was declared in 1970, and the Armed Forces were sent into Quebec, it was done at the request of the provincial government, not over its objections. Provinces have enormous power to act within their own sphere, and a provincial vote is unlikely to be something the federal government would want to interfere with.
But that doesn't mean Ottawa would necessarily be bound by the results of a provincial referendum. Instead of declaring illegal a vote that didn't meet its conditions, and sending in police to shut it down, Ottawa would be far more likely to simply treat a vote that didn't satisfy the constitution and the law as having no legal effect.
Instead of meeting a half-baked referendum with violence, Ottawa could meet it with a shrug. That's what the Clarity Act promises.
It doesn't make it illegal to hold a referendum. Nor does it make separation impossible. But unless a future independence referendum in Quebec asks a clear question, and in a fair vote wins a clear majority – something substantially more than 50-plus-one – the result will not trigger negotiations. Instead of trying to suppress the result, the government of Canada could ignore it.
And that would return the matter to the realm of politics. Madrid thought the solution to the Catalan government's provocations was to use force. But in a democracy, jaw-jaw is always better than war-war, and more effective, too. The former can go on and on, opening the door to negotiation, compromise, changed minds and cooled passions. The latter promises the opposite.