Drafting Independence: The Catalan Declaration of Sovereignty and the Question of the Constituent Power of the People in Context

–Zoran Oklopcic, Department of Law and Legal Studies, Carleton University

On January 23, 2013 the Catalan Parliament adopted the Declaration of Sovereignty and Right to Decide of the Catalan People.[1] The Declaration proclaims ‘the people of Catalonia’ to be ‘a sovereign political and legal subject’ with a ‘right to decide … their collective political future’. The content of this decision is left underdetermined, but it’s obviously used as code for a putative right of the Catalan people to secede from Spain. Like many such documents, the Declaration constructs a familiar narrative of an enduring Catalan political autonomy, often oppressed by the wider Spanish state. In addition, it specifies a set of liberal-democratic principles—transparency, dialogue, social cohesion, Europeanism and participation, among others—that will serve to guide the decision-making process.

The Declaration also contributes to setting the stage for an unpredictable constitutional conflict: as Karlo Basta has recently argued, the political dynamic in Catalonia begins to appear similar to that of the former Yugoslavia in the early 1990s[2]. As in Spain today, the Yugoslav constitutional crisis was in part precipitated by attempts to recentralize the country in the context of a economic crisis, provoking richer parts of the country to seek further autonomy, and ultimately secession. In Spain today, as in Yugoslavia 20 years ago, the army is the constitutional guarantor of territorial integrity of the country[3]. As in Yugoslavia, the reaction of the Spanish army to secessionist mobilization has been extremely hostile, threatening (and in Yugoslavia making good on that promise) to use force to prevent the unilateral secession of Catalonia.

One should, of course, be exceptionally wary of easy analogies: Spain is not Yugoslavia, Rahoy is—needless to say—not Milošević, and Catalonia is not Croatia. But the question that has provoked a spate of interest in contemporary constitutional theory over the last 20 years remains the same in both cases: how to understand the idea of ‘the people’—the bearer of the pouvoir constituant—that has the right to decide a polity’s ‘collective future’? My brief intervention will not seek to answer this question. Rather, by roughly sketching some of the ways in which this question has recently been addressed in contemporary constitutional and democratic theory, I seek to shed some light on the assumptions and implications of these answers. In doing so, I will suggest caution against constitutional theory’s embrace of the Declaration’s rhetoric as somehow attesting to the activation of the constituent power of the Catalan people.

At the risk of over-simplifying, constitutional theory thematizes constituent power of ‘the people’ from two vantage points: normative and non-normative. Normative approaches highlight the need for wide popular participation in the process of constitution-making.[4] Other views are not explicitly normative, but their work mirrors commitments of normative political theory. Stephen Tierney’s work on multinational constitutionalism takes the existence of sub-state societies for granted, but also features normative undertones that allow his work to be understood as, if not building on, then at least very sympathetic to the project of liberal nationalism.[5] Also, his recent work features a strong commitment to deliberative democracy, as a means to enhance the legitimacy of the exercise of people’s constituent power.[6] The recent Declaration of Sovereignty is almost a perfect embodiment of this approach, as it blends the facticity of the enduring sub-state political identity with the normative commitment to liberal nationalism, participation and deliberation. The Declaration’s commitments to consultation and deliberation are thus put into the context of demands for autonomy that won’t go away: from the instances of the medieval Catalan parliamentarism (assemblees de Pau i Treva, Cort Comtat), early modern political autonomy (Diputació del General) to the suppressed and then revived twentieth century territorial autonomy (Mancomunitat de Catalunya, Generalitat de Catalunya).

While this mix of facticity and normativity seems to be a particularly fitting approach to indentifying the bearer and the scope of constituent power in the Catalan context, this is not the only way in which its character can be articulated in theory. Instead of simply accepting the sociological fact of an enduring collective political identity, Hans Lindahl has suggested that an exercise of constituent power is always ‘pulled off’: the ‘people of Catalonia’ is a putative construct, which can only retroactively be seen as ‘the bearer of constituent power’ if the ideals in the Declaration ‘catch on’: if, indeed, Catalonia succeeds in seceding. Others, such as Chris Thornhill, have recently focused on the function the idea of constituent power plays in modern constitutionalism.[7] For Thornhill, we should be wary of “literalistic misconstruction” of constituent power. Instead of seeing it as belonging to an identifiable group of people, constituent power should be seen as part of constitutionalism’s adaptive vocabulary that enables the political system to augment political power internally, simplify its exercise and to stabilize a new polity in “an uncertainly supportive environment”.[8]

Both non-normative accounts point to the reasons why the idea of ‘the people’—its sovereignty and constituent power—is such a resilient part of constitutionalist vocabulary, beyond the simple fact that it remains firmly embedded in the grassroots political imaginary. But both accounts presuppose the territorial container, if not that of a sovereign state, then that of an identifiable polity. The same goes for the normative accounts: the unit within which we should deliberate—and then jointly decide—is not put into question. The only approach that solves this problem is one that sides with liberal nationalism, but that approach is problem-free only insofar as it can rely on the political homogeneity of the seceding unit.

Recursive (liberal) nationalist mobilization and the legitimacy of the seceding territory

Part of the usefulness of the vocabulary of constitutionalism to solve national conflict depends on the clarity of spatial fault-lines between antagonistic political projects. Conjuring ‘the people’ of Scotland as the bearer of constituent power, for example, makes sense because the territory of Scotland is not only “a recognised political and territorial entity”, but also because “its territorial extent is not disputed”.[9] Equally, the legitimacy of the Catalan territory is not questioned, at least not in the literature in the English language. While there is a Spanish-speaking minority within Catalonia, it is, to my knowledge, relatively dispersed and does not mobilize around a project to partition Catalonia in case of its secession.

But in cases where the minorities within minorities did so—such as the Serbs in Croatia in 1991, or the Crees in Quebec in 1995—one is left with the difficult task of explaining why a historical narrative of the endurance of secessionists’ political autonomy would trump the demands of liberal reciprocity, where one nation ought to give to another what it asks for itself: namely, a right to ‘choose its political destiny’ on the lands it inhabits. Similar to the recent Declaration, in 1995 the Quebec National Assembly passed Bill 1, An Act Respecting the Future of Quebec. Similar to the Catalan Parliament today, the National Assembly has invoked the historical recognition of the “distinct nature of [Quebec’s] institutions”, the fact that Quebec was one of “the first parliamentary democracies in the world”, and the fact that the Canadian state has betrayed the “federal bargain”. The James Bay Crees were not impressed with this narrative, nor with the claim that “Québec shall retain its boundaries”[10] after secession. According to the Grand Council of the Crees, “separatists believe that the territorial integrity of Canada can be ruptured … by the unilateral secession of Quebec from Canada. [But no] consideration [is] given to the integrity of Aboriginal territories.”[11] And while recent advances in constitutional theory have argued that ‘deliberation’ and ‘participation’ are an inextricable part of the legitimate exercise of constituent power in deeply divided societies, adding these ‘ingredients’ doesn’t solve the problem: they continue to presuppose that what needs to be argued first—the legitimacy of the territorial ‘container’ of the secessionist project. No wonder then, that the Supreme Court of Canada in the Secession Reference rejected entertaining the inflaming question of who is ‘the people’ for the purposes of self-determination, and had instead mandated a political process where all contentious issues surrounding secession are on the negotiating table.

Who will decide: turning the question of ‘the people’ upside down

Recent developments in democratic theory only further frustrate the possibility of a straightforward invocation of the people’s constituent power in a multinational context. While liberal nationalism does not— at least not explicitly—rely on the idea of maximizing individual political preferences/consent/autonomy, the implication of the satisfaction of the liberal nationalist program is the tacit fulfillment of the promise of early modern social contract theory. For example, independent Catalonia would maximize the degree of loyalty and attachment the respective national communities (Spanish and the Catalan) have towards their respective polities (new, independent Catalonia and the-rest-of-Spain) in comparison to the status quo ante.

Such a view of ‘the people’—carrying with it a hidden promise of the increase of the aggregate individual political autonomy—is challenged by recent work in democratic theory. Most radically, democratic theorists argue that ‘the people’ is, in fact, a group bound not by mutual affections (or even institutions), but rather by joint affectedness by a proposed decision. This view’s most radical implication is that the very claim of affectedness should be democratically decided.[12] This would, for example, mean that the Catalan demand for independence, and Spain’s (underlying) moral counter-claim to be fundamentally affected by this demand, ought to be decided by all those who would, in turn, claim to be affected by this dispute—potentially ‘the people’ of the entire globe. Radically reimagining the concept of ‘the people’ along these lines would formalize, otherwise normative questions, about the legitimacy of Catalan nationalism, or the legitimacy of enduring institutions of territorial autonomy.  In other words, whatever ‘the World’ decided—arguably, through the process of state recognition—would be the legitimate solution.

Constitutional theory, independence of Catalonia and wider implications

If it is highly unlikely that these recent views on the nature of ‘the people’ will capture popular imagination, does this mean that the constitutional theorist should, as Tierney has suggested, only “engage[] with constitutionalism as it exists in practice, and insofar as normative prescriptions can feed into this engagement they should … be able to do so at the interstices of extant constitutional projects and ongoing constitutional processes.”[13] While his view is a welcome antidote to the impulse to stray too far from the commonplace imaginary of popular sovereignty, I believe that the genie is already out of the bottle:  Lindahl and Thornhill have shown both the reasons for resilience of the vocabulary of popular constituent power, but have—in shedding light on the logic of its invocation and its function in modern liberal democratic constitutionalism—also undermined its appeal as a tool used to make categorical political demands. Constituent power indeed appears “attractive only as long as it remains dark”.[14]

From this it doesn’t follow that the nexus of nationalism and republican political imaginary can easily be disentangled. Nationalism will always piggyback on the idea of collective self-government. But this does not mean that constitutional theory should be complicit in this nexus: at the very least, constitutional theory should recognize that there are contexts where deploying the vocabulary of peoplehood is harmless (Scotland), and contexts where its’ identity is contested, and where its invocation is, as a result, problematic, and potentially dangerous (Bosnia and Herzegovina, Bolivia, Quebec, Syria).

Does this mean that Catalonia shouldn’t become independent? Joseph Weiler suggested as much in his recent contribution to EJIL:Talk![15] There, he painted the bleak picture of a petty nationalism, setting a bad example for the rest of Europe. I do not find this picture persuasive: Europe is not worse off with Norway, Belgium, Slovakia, Slovenia, Montenegro. Nor would the world be worse off with an independent Catalonia, Scotland or Quebec. In his response to Weiler, Nico Krisch argued that Catalan secession should not be seen as an exercise in tribal nationalism, but rather as a formation of a different political ‘we’, always embedded in a larger—albeit differently configured—‘we’ of the European Union.[16] Krisch has also suggested that the Catalan “drive to independence” is precipitated, in good part, due to ongoing and subtle discrimination by the Spanish state. I don’t know whether that’s true, but arguments such as these ought to form part of the larger debate about the legitimacy of the secessionist project. Equally, the complete unresponsiveness of the Spanish state (both the government and judiciary) to even discuss the demands for independence is what further legitimizes the Catalans’ insistence on seceding, and not an apodictic assertion of their sovereign ‘right to decide’. Finally, instead of an inflaming vocabulary of right—either Spanish or Catalan—due place should be given to the articulation of future political and social aspirations that would be served by Catalan independence.[17]

All this doesn’t mean that ‘the people’ can be (easily) eradicated from constitutionalist discourse, but it is quite possible to put it in its place. Again, the Secession Reference is a good example. The Canadian Supreme Court dignified the pursuit of secession by ‘the population of Quebec’, but did not draw any immediate implications from it for the future status of Quebec.[18] What follows from an expression of the will of the clear majority of the population of Quebec to secede is not secession, but good faith negotiations about it. ‘Good faith’ here should be interpreted as an injunction to negotiate towards secession, and not as an approval of the federal government’s foot-dragging. Inventing spurious ‘interests’ would only hurt the Canadian government’s claim to maintain territorial integrity, once Quebec decided to secede in frustration with the bad faith claims of affectedness on behalf of the wider polity.

Is this the way to go in Catalonia? In a previous post on ICONnect concerning Catalonian independence, Victor Ferreres Comella suggested that the Spanish Constitution may ultimately accommodate Catalan aspirations for independence.[19] In comparison, the Canadian constitution presented less of an obstacle for the project of Quebec’s secession; unlike the ‘inviolability clause’ of the Spanish constitution, the Canadian constitution is silent on the matter of territorial integrity and national unity. This silence enabled the Court to introduce the four unwritten principles that open the door to a constitutional secession.  Introducing the unwritten principles into the Spanish constitutional jurisprudence would perhaps be an insurmountable task given the explicit wording of Article 2 of the Constitution. Equally, introducing unwritten principles might cut both ways, because the ‘basic structure’ doctrine in India, for example, was deployed for precisely the opposite purpose.

In any event, a creative constitutional solution appears to be urgently needed. Hoping that one of the sides in this constitutional conflict will somehow stare down the other, may be hoping for the most elegant solution, but also calls forth the riskiest outcome.