CHAPTER 6: LAW 4/2010, POPULAR CONSULTATIONS VIA REFERENDUM

The Statute of Autonomy of 2006 recognizes, for the first time, a whole series of rights and guiding principles that should inspire the action of the public powers of Catalonia.

One of the rights that it broadly recognizes is the right of participation (article 29). Article 23 of the Constitution already provides that citizens have the right to participate in public affairs directly, but in Catalonia, the Statute has developed this right more intensively and more specificly, recognizing the right of citizens to promote the Call for popular consultations by the Generalitat and the town councils, on their respective competencies.

When speaking of popular queries, we have to distinguish two categories. On one hand, citizen participation instruments aimed at knowing the position or opinions of citizens in relation to any aspect of public life and that are materialized in multiple and diverse modalities, such as surveys, discussion forums and participation, and public hearings. On the other hand, referendums, which are a popular consultation modality in which the entire electoral roll is called on to participate and the formal and legal requirements are guaranteed to validate the query and its result.

Until the entry into force of this law, the referendum was only foreseen for three very specific cases: the consultative referendum for political decisions of special significance (article 92 of the Constitution), the constitutional referendum for ratifying constitutional reforms (articles 167 and 168 of the Constitution) and the referendum to ratify the statutes of autonomy (article 151 of the Constitution). The legal system also provides that referendums can be held at the municipal level, where, at the request of citizens or local entities, a municipality can set the procedure for holding a referendum, which, ultimately, the state must authorize.

Article 122 of the Statute establishes that the Generalitat has exclusive power over the establishment of the legal system, the modalities, the procedure, the performance and the call by the Generalitat or by the local authorities, Within the scope of their powers, surveys, public hearings, participation forums and any other popular consultation instrument, saving the provisions of article 149.1.32 of the Constitution.

Within this competence framework, this law establishes the legal system, the procedure, the performance and the call for popular consultation via referendums in Catalonia and in municipalities. The authorization of these popular consultations falls necessarily within the jurisdiction of the State in accordance with the provisions of article 149.1.32 of the Constitution. Likewise, the provisions of this law on popular consultations through referendum in Catalonia concerning respect the provisions of Organic Law 2/1980, of January 18, regulating the various types of referendum, and the Organic Law 5/1985 , of June 19, of the general electoral system. However, the provisions of Organic Law 2/1980 are not applicable to popular consultations at the municipal level, as stipulated in its additional provision.

This law defines two areas of popular consultations by referendum: on one hand, popular consultations promoted in Catalonia, and on the other hand, those that are promoted in municipalities.

Regarding Catalonia, the object of consultations are the political issues of special importance for citizens in the field of the competences of the Generalitat. It is established that the effect is consultative and that the Government appears before the Plenary of the Parliament to determine its position in relation to the result of the consultation. In addition, it has been tried to foresee the possibility that public institutions promote a popular consultation through a referendum. Thus, the Government, the Parliament and the municipalities are legitimized, as representatives of the interests of the citizens, to propose the call for a popular consultation.

Regarding municipalities, popular consultations through referendum were already regulated by Law 7/1985 of April 2, regulating the bases of the local regime, by Legislative Decree 2/2003, of 28 d April, which approves the consolidated text of the municipal and local law of Catalonia, and by Decree 294/1996, of July 23, which approves the Regulation of municipal popular inquiries. This law simplifies and provides more guarantees to the procedure for collecting signatures and validating the consultation proposal, when it comes from the citizens. Popular consultations in municipalities also have consultative effects and establish that the mayor must come before the town hall and hold a position on the result of the consultation.

The President of the Government of Spain filed an appeal for unconstitutionality regarding the popular consultation through referendum in Catalonia.

The ruling was issued on May 10, 2017, totally considering the appeal of unconstitutionality, leaving null and void Title I and Title II of this law.

The reasons for declaring the unconstitutionality are:

1. First of all, it understands that the law is actually regulating a referendum.
2. This type of referendum, although it is consultative, it is not provided in the Constitution or the organic law 2/1980, of general electoral system (LOREG).
3. It considers that, in accordance with article 149.1.32 CE, Spain has exclusive competence for authorizing popular consultations through a referendum.
4. It also offers a reminder that this type of consultation is a development of a fundamental right, the right of citizens to participate in public affairs as stated in article 23.1 CE, development that can only be done by organic law (and only the state can make organic laws).
5. It also states that it is not possible to leave in the hands of a public consultation, referendum or not, issues that fall within the competence of the State or that were resolved in the constituent process and which are therefore outside the scope of decision of the constituted powers.
6. Consequently, an Autonomous Community cannot establish new forms of consultation or referendum, and for this reason it declares that all references of this law in this sense are unconstitutional and void. Consultations at local level that were already provided for by organic law are declared constitutional.

It must be said, to end, that later, the Parliament of Catalonia passed Law 10/2014, of non-referendum public consultations and other forms of citizen participation, a law that has also been subject to appeal of unconstitutionality and is partially considered by the Constitutional Court. It will be analyzed further in, in another chapter.