I-CONnect Symposium: The Independence Vote in Catalonia–The Constitutional Crisis of October 1

[Editor’s Note: This is the third entry in our symposium on Sunday’s independence vote in Catalonia. We are grateful to our convener, Professor Zoran Oklopcic, for assembling an outstanding group of scholars to bring our readers helpful context and analysis during this important moment for the region. The introduction to our symposium is available here.]

—Víctor Ferreres Comella, Professor of Constitutional Law, Pompeu Fabra University (Barcelona); Visiting Professor, University of Texas at Austin School of Law; Author of “The Constitution of Spain: A Contextual Analysis” (Hart Publishing, 2013)

In the past few years, a strong social movement has emerged in Catalonia to support a political process that should lead to Catalonia’s independence from Spain. The current majority in the Catalan Parliament is clearly committed to secession. The political parties that obtained a majority of the parliamentary seats in the elections that were held on 27 September 2015 (Junts pel Sí and CUP) were very explicit during the electoral campaign that a vote for them was to be counted as a vote in support of secession. Although the popular vote they gathered was only 47%, they argued that they had a democratic mandate to break Catalonia’s ties with Spain. Thus, in November 2015, they passed a parliamentary resolution that provided that the Catalan government was only to be bound by Catalan laws, and also declared that the Spanish Constitutional Court had lost its legal authority to invalidate any decisions by the Catalan government. (The Constitutional Court, of course, declared such a resolution to be unconstitutional).

A few weeks ago, the Catalan Parliament continued its secessionist strategy and passed two important statutes. It did so through a fast-track procedure that eliminated all the rights of participation that the parties in the opposition are normally awarded. One statute called a referendum on independence, to be held on October 1, 2017. The other stipulated the procedure that needed to be followed to declare Catalonia’s independence and give birth to a new Catalan Republic. According to these laws, if the referendum reveals that there are more votes in favor of independence than against it, the Catalan Parliament must issue a declaration of independence in 48 hours. A provisional set of laws will then apply, until a new Constitution is adopted.

All these political moves obviously amount to a grave attack on the democratic constitutional order of Spain.

Under the Spanish Constitution (as is true of almost all democratic Constitutions in the world), it is unlawful for a region to unilaterally secede from the rest of the country. The Spanish Constitution does not recognize the right of Catalans to “choose secession”. Nor does the principle of the self-determination of peoples, which is part of public international law, extend such a right to Catalans.

As expected, the Spanish government challenged those statutes before the Constitutional Court. The Court quickly suspended their operation by way of interim measures. So the referendum that was to be held last Sunday, October 1, was illegal. The Spanish government, the prosecutors and the judiciary adopted various measures during the previous days to neutralize the logistics of the referendum. The technical infrastructure was their target. In spite of their successes on this front, they were ultimately unable to prevent Catalan citizens from actually voting on October 1 in an informal referendum. Indeed, people went to the polling stations and managed to cast their ballots.

In various places, there were intense clashes between the state police forces (Policía Nacional and Guardia Civil) and crowds that tried to prevent the seizure of the ballot boxes. Innocent citizens who were offering no resistance were also affected. Many people were injured. The evidence of police excesses has generated a big scandal, both in Spain and internationally. It seems clear that the Spanish government made a terrible mistake in this regard. There was no need to use police coercion when the referendum had already been technically dismantled.

A careful investigation on these sad events is necessary. We don’t have reliable figures about the number and kinds of injuries. An important question has arisen concerning the role of the Catalan police (Mossos d´Esquadra): the judiciary had ordered them to close the polling stations in the morning, before voters started to come. There are good reasons to believe that the Catalan police officers were too passive, so that the Spanish state police forces were then confronted with a very complicated situation. Criminal proceedings have already been instituted against the Catalan officers, for contempt of court. A debate should also be entertained about the role of children: is it legitimate for parents to take their children to occupy the schools that serve as polling stations during the weekend, in order to make police actions more difficult later on? Another source of worries concerns the social media. The true images of what was going on were awful enough. The social media, however, also distributed some false information. In this connection, everybody was shocked and indignant when a woman said that the police had broken her five fingers, one by one. Her video went viral. This, naturally enough, led many relevant public figures to express their anger against the police. Later, however, the woman had to admit that what she had asserted was not true. In any event, it is sad that the use of police coercion, which was totally unnecessary, led to so many people being injured. Not surprisingly, thousands of citizens have taken to the streets today (October 3) to express their outrage against police violence.

The situation at the time of writing is very uncertain. Many people in Catalonia, like in the rest of Spain, are worried about the escalating institutional and political conflicts that they are witnessing. Will the Catalan Parliament take the step of proclaiming Catalonia´s independence in the coming days? It if does, the political crisis in Spain will be extremely serious.

The question is, how did we get here, and what should be done? A significant part of the responsibility rests on the shoulders of the leaders of the secessionist movement. They have created a misleading narrative, according to which Catalans will be much better off if they secede from Spain. They portray Spain as an authoritarian country that shows no sensitivity towards Catalan national identity. An independent Catalonia, they say, will be a model for the world: it will be a country like Denmark (but with nicer weather). To construct their narrative, the secessionists have mentioned several grievances against the Spanish government. Some of these grievances are justified, while others are not, or have been exaggerated. It is not legitimate, it seems to me, to resort to unilateral secession as a way out of the political problems. Improvements can be introduced in the existing constitutional structure.

It is true, for example, that more visibility should be given to Catalan language and culture at the state level. Among other things, this could help ensure the presence of Catalan in the European Union. This does not mean, however, that Spain has shown no respect for Catalan identity. In public schools in Catalonia, for instance, Catalan is the medium of instruction – Spanish plays a marginal role. Parents have been given no right to insist on Spanish as the working language for their kids in public schools. This is not a small achievement, from a Catalan nationalist perspective. It is also true that the way resources are distributed between the different regions in Spain is not fair, and that Catalonia (as well as some other regions) should receive more public goods than it currently gets. But this does not mean that “Spain robs us”, as some secessionists constantly say. Actually, secessionists often argue that, if Catalonia becomes independent, the European Union will not be able to close its doors to the new state, given the wealth and industrial development that Catalonia can exhibit. This suggests that being part of Spain has not been so terrible after all. It is also uncontroversial that the Spanish government often issues laws and regulations that are so detailed that they drastically reduce the space that is left for regional self-government. A better system should be designed to safeguard regional autonomy against the legislative excesses from Madrid. It is an exaggeration, however, to say that Catalan self-government is minimal.

Secessionists also tend to distort history. They do so, in particular, when they offer a biased account of Franco’s dictatorship, portraying the latter as an example of “Spanish” authoritarianism, in contrast to the Catalan democratic spirit. They neglect that Catalonia was deeply divided during the Civil War, and that significant sections of conservative public opinion in Catalonia were supportive of Franco.

Secessionists also underestimate the extent to which the democratic system that was built around the Constitution of 1978 currently in force has been quite decent in terms of protection of rights. Thus, Spain has been one of the first countries in the world to recognize same-sex marriage (in 2005). Spain, moreover, has never responded to terrorism through laws allowing for unlimited detention without trial, as other nations unfortunately have. A key manifestation of the Spanish Constitution’s liberal openness is the absence of any substantive barrier to constitutional amendment, since no clauses are unamendable. Therefore, there are no restrictions regarding the goals and programs that political parties can pursue. Secessionists have freely fought for their ideas in the political sphere, under the constitutional protection of freedom of speech, association, and assembly.

On the other hand, part of the responsibility for the constitutional crisis we are witnessing also lies with the two main political parties in Spain, the Popular Party and the Socialist Party, which have failed to reach broad agreements to amend the Spanish Constitution. When the Socialist Party won the elections in in 2004, the new government proposed some constitutional reforms. The Popular Party in the opposition, however, refused to negotiate any constitutional changes, some of which would have helped to better organize the distribution of power between the central government and the regions. Given the Popular Party’s refusal to discuss constitutional reforms, the Catalan government, with the support of the Socialist Party and the central government, chose to amend its own Statute of Autonomy, to acquire more self-government. That Statute was enacted into law after the approval of both the Catalan Parliament and the Spanish Parliament, over the opposition of the Popular Party. Catalan citizens ratified the Statute in a referendum. The Statute, however, was problematic from a constitutional perspective: to a large extent, it tried to introduce changes that only a constitutional amendment could bring about.

The Popular Party then made a mistake of historic proportions. It launched an attack against the new Catalan Statute. It organized a campaign throughout Spain, collecting signatures in favor of a referendum to reject the changes that the Catalan Statute incorporated. No referendum was held, but the party obtained 4 million signatures. (Spain had a total population of 45 million at that time). Many Catalans felt indignant about this political move. The speeches that were uttered during this campaign were often full of prejudices against Catalan self-government.

In addition, the Popular Party challenged the Statute before the Constitutional Court. The latter, as predicted by most scholars, found important parts of the Statute to be unconstitutional. (It bears emphasizing that the Court was unanimous as to the unconstitutionality of the provisions that the Court declared invalid. The dissenting judges were of the view that, in addition, other provisions should also have been struck down). It was not necessary, however, for the Popular Party to take this route. The Catalan Statute would have been gradually readjusted and partially neutralized by the Court in the context of ordinary cases – there was no need to bring an abstract review challenge, with all the political drama that it entails. The Court’s decision, in any event, contributed to Catalan disappointment. The Court, in particular, was rather clumsy when it refused to give its constitutional green light to the idea that Catalonia was a nation, an idea that the Preamble of the Statute expressed.

So if this is the story, what is to be done? There is wide consensus among observers that the key political figures should sit down and negotiate an agreement to confront the Catalan crisis. According to some voices, the agreement should include the terms under which the Spanish government would permit Catalonia to hold a referendum on independence. (It deserves to be noted that in 2014 the Spanish Parliament already rejected a legislative initiative advanced by the Catalan Parliament that would have allowed Catalonia to hold a referendum on independence). The problem with this proposal, first of all, is that it is doubtful that such an authorization would be valid under the current Constitution, given the Constitutional Court’s case law. More importantly, an existential question about the independence of Catalonia would produce enormous polarization among the citizenry, undermining the social fabric.

A better alternative would be for a package of reforms to be agreed upon by the relevant political representatives, and offered to the Catalan people for a vote in a referendum. In that referendum, the secessionist forces could argue their case against the proposed reforms, and in favor of independence. If the majority of citizens voted in favor of the package, the necessary legislative and constitutional changes would be introduced at a later stage. For these purposes, it might be a good idea to have the assistance of a body of external experts (maybe the Venice Commission?) that could certify that the package of reforms was quite reasonable, in light of the experiences of other federations, and supervise the implementation of the proposals.

There is no hope for progress, however, if there is only negotiation. There must also be a deliberative moment, when citizens and their representatives try to explain to each other why they think the way they do, and why they have developed the political preferences they have. Big misunderstandings and false information could be eliminated through a deliberative process of some quality. Whether a conversation of this sort will take place, only time will tell. For the moment, the most urgent question on the table is whether a unilateral declaration of independence will be issued and, if so, what the Spanish government´s reaction is going to be. There is no doubt that October 1, 2017 will be reminded in the future as a critical day in Spain’s constitutional history.

Suggested Citation: Víctor Ferreres Comella, I-CONnect Symposium: The Independence Vote in Catalonia–The Constitutional Crisis of October 1, Int’l J. Const. L. Blog, Oct. 4, 2017, at: http://www.iconnectblog.com/2017/10/i-connect-symposium-the-independence-vote-in-catalonia-constitutional-crisis