It would be helpful to refer, albeit briefly, to the various steps leading up to the current clash between the national Spanish and regional Catalonian authorities. Clearly, the recent and much publicised consultation held on 9th November, was a particular flashpoint in an ongoing legal and political tussle. This consultation exercise had been previously declared illegal by the Spanish authorities, but went ahead regardless (admittedly on the basis that it was officially arranged by voluntary organisations rather than the regional government). Of those who chose to participate, 80% expressed their desire to live within an independent Catalonian State.
This controversial consultation is undeniably an important landmark in the continuing conflict between the central and the regional authorities and will be discussed further afterwards below; however, the other key aim of this blog is to highlight the main findings of the previous decision of the Spanish Constitutional Court on 25th March 2014, which deemed important parts of the Catalonian Declaration on an independence referendum unconstitutional. The consultation, its outcome and implications can only be meaningfully understood in the context of this earlier judicial pronouncement.
A referendum about the “political future of Catalonia” had been included in the agreement of governance signed on 18th December 2012, by both Convergėncia I Unió (CIU) and Esquerra Republicana de Catalunya (ERC), two nationalist parties. The latter was a traditionally left-wing pro-independence party, whilst the former, a conservative nationalist coalition, was generally regarded as a strong supporter of further autonomy within the Spanish State, but not a pro-independence party. In fact, during the 1990s, Convergėncia i Unió had been a strong ally of both the Conservative and the Socialist Parties in the central Government in Madrid. It is unquestionable that the pro-independence movement could only claim the support of a small minority of citizens in the Catalonian nacionalidad as recently as ten years ago; but there has since between a paradigm cultural shift in this regard, and the character of the debate has radically altered.
On 23rd January 2013 the Parliament of Catalonia adopted the “Declaration of Sovereignty and of the Right to Decide of the Catalan People”, which stated that “The people of Catalonia have –by reason of democratic legitimacy- the character of a sovereign political and legal entity’. The Declaration asserted as its basis on the principles of sovereignty, democratic legitimacy, transparency, dialogue, social cohesion, Europeanism, legality, role of the Catalan and participation: “In accordance with the democratically expressed will of the majority of the Catalan public, the Parliament of Catalonia initiates a process to promote the right of the citizens of Catalonia to collectively decide their political future”. Only a few months later, on 8th May 2013, this Declaration was provisionally suspended by the Spanish Constitutional Court.
However, the Government of Catalonia, the Generalitat, led by Artur Mas, decided to go ahead with this project in defiance of the Court’s ruling. In December 2013 it announced that an agreement had been reached by the majority of political parties represented in the Parliament of Barcelona, including a date (9th November 2014) and the wording for the referendum on independence. The questions would be as follows: “Do you want Catalonia to become a State?” and in the affirmative, “do you want this State to be independent?” This move by the Catalonian authorities had not been endorsed by the central authorities; in fact the Spanish Prime Minister, Mariano Rajoy, and other members of the Government were explicit in categorising the proposals as illegal.
Crucially, on 25th March 2014 the Spanish Constitutional Court, in response to an appeal put forward by the Abogado del Estado (Attorney General), on behalf of the Spanish Government against the January 2013 Declaration of the Catalonian legislature, found that the principle of sovereignty, as articulated within the Catalonian Declaration, was unconstitutional and therefore void. However, it also stated that the right to decide was compatible with the Constitution, provided that it was duly interpreted.
In the view of the Abogado del Estado, the January 2013 Declaration encouraged citizens to take part in a political process which could be regarded as a genuine challenge to the Spanish Constitution, and in particular to Art 1.2 . This provision establishes that national sovereignty belongs to the Spanish people, and it is from this source that the powers of the State emanate. Furthermore, in his view, the Declaration purported to have juridical effects ad extra, with undeniable external juridical significance. In fact, it explicitly stated that its addressees were all citizens of Catalonia and that it had a binding effect on the action carried out by the Generalitat. In the view of the Abogado del Estado, the Government of Catalonia was unquestionably bound to achieve the aims set out by its Parliament, and these also had an impact on the citizenship. As the Constitutional Court is the guardian of the Spanish Constitution, the Abogado del Estado asserted that relying on Art 161.2 was appropriate in this context, as it authorises the Spanish Government to contest before the Constitutional Court the provisions and resolutions adopted by the organs of the Autonomous Communities, and this Declaration aimed to alter, unilaterally, the global balance of the Spanish State. In addition to Art 1.2, stated above, the Declaration breached Arts 2, 9.1 and 168 of the Spanish Constitution, as well as Arts 1 and 2.4 of the Regional Law of Catalonia. Art 2 was critical, as the highest Spanish Law is based on the indissoluble unity of the Spanish nation, the common and indivisible homeland of all Spaniards, whilst recognising and guaranteeing the right to autonomy of the nacionalidades and regions of which it is composed. Furthermore, in procedural terms, Art 168 declares that if such a fundamental revision of the Constitution is proposed, it must be approved by a two-thirds majority of the members of each Chamber, and the Parliament should immediately be dissolved. The Abogado del Estado insisted that nacionalidades are, of course, entitled to believe that they should become independent, but they must should then follow the correct procedure.
The legal team of the Catalonian authorities challenged this analysis, and stated that such a Declaration was within the remit of Art 145 of the Reglamento of the Catalonian Parliament, which is, by definition, completely different from a legislative action. In their view, such a Declaration aimed to express a will and a political purpose, and a legally binding force was lacking. In fact, it did not change any existing legal framework nor produce real or concrete legal effects. This was, in their opinion, a purely political declaration which indicated the political route through which the whole procedure was to be developed. They also acknowledged that in the juridical sense the principle of sovereignty did not fit into the current legal framework, but insisted that this was not an obstacle, as their Declaration was purely political in nature, and neither had nor claimed legal and constitutional effects.
As previously indicated, the Spanish Constitutional Court found that the Declaration was, strictly speaking, a political act, and accepted the assertion by Catalonian authorities’ lawyers that it was not legally binding; nevertheless, the Court emphasized that such lack of legal force by no means equated to a lack of civil effect. Because in reality stating that citizens of Catalonia are ‘sovereign’ would lead to a juridical outcome, the exercise of the right to decide couldn’t truly be limited to the political realm. In addition, the decision of the highest Spanish Court concurred with the analysis of the Abogado del Estado in relation to the breach of both Arts 1.2 and 2 of the Spanish Constitution. As a result of this finding, an Autonomous Community couldn’t unilaterally convene a referendum in order to decide whether to remain part of the Kingdom of Spain.
Furthermore, in a previous decision of the same Court, STC 31/2010, it was recognized that Catalonia was a subject with rights, but with a crucial caveat. This subject status flowed from the framework recognized by Art 1 of its Estatuto de Autonomía, Catalonia’s highest internal law. This legal structure obviously not only assumes, but is utterly dependent upon, the overall universe created by the Spanish Constitution in 1978; and so must be compatible with it. In other words, the Autonomous Community of Catalonia only makes sense in light of the sovereignty proclaimed by Art 1.2 of the Constitution.
However, the Spanish Constitutional Court was at pains to stress that the concept of the ‘right to decide’ is not, by its very nature, incompatible with the Spanish legal framework, but it may only be exercised in compliance with the mechanisms set out with the national Constitution. ‘The right to decide’ cannot amount to complete self-determination, as that is not recognised by the 1978 document; however such an outcome can certainly be a political aspiration, to be reached by means of a legal and constitutional process. The Court recognised the significance of a healthy dialogue between the central and Catalonian authorities, but also clearly stated that it is not its function to determine the right shape of such dialogue. Furthermore, the Spanish Constitutional Court was not antagonistic to changes or transformations to the current framework, as long as they followed the right legal and constitutional procedures. In light of this, if a Comunidad Autónoma initated the constitutional reform procedure, as recognized by Arts 87.2 and 166 of the Spanish Constitution, the Spanish Parliament would be bound to consider it. In summary the Spanish Constitutional framework was not found to be, in principle, a barrier to the ‘right to decide’. This had been recognised as a political aspiration which could be defended as such.
A few days later, on 8th April 2014, the Spanish Congress, the Lower House, rejected the Parliament of Catalonia’s request to give it the power to organise the self-determination referendum.
But despite the opposition of the authorities in Madrid, the Catalonian legislature and executive continued with their plans in the course of the last few months. The consultation law was approved by the regional Parliament on 19th September 2014, followed by a decree of the President of its executive on 27th September. The response of the Spanish Constitutional Court could not have been more rapid and only two days later, on 29th September, it provisionally suspended the vote.
In this climate of continued conflict and disagreement, the Government of Catalonia declared on 14th October 2014 that a public consultation would replace the previously planned vote. Nevertheless, what was presented as a concession was not adequate to satisfy the Spanish Government, which after having consulted the Consejo de Estado, a prestigious advisory body, decided to also request the suspension of this alternative public consultation, which was to have been held on 9th November. In the eyes of the Consejo de Estado, rather than improving the constitutional position, the guarantees incorporated into the proposed consultation were even weaker than the inadequate assurances within the previously planned vote.
Only a few days ago, on 4th November, the Spanish Constitutional Court decided to accept the appeal brought forward by the Abogado del Estado against the process of public consultation and, consequently, decided to suspend such a public consultation, as well as all other decisions related to its preparation.
In response to this pronouncement, the Government of Catalonia agreed to leave the running of this public consultation mainly, if not exclusively, in the hands of voluntary associations, including the Pacto Nacional por el Derecho a Decidir. The Spanish Government for its part declared that in light of this, it would not challenge the decision.
More than two million of the population within Catalonia took part in the 9th November consultation. Nevertheless, the validity and significance of the outcome is inevitably going to be limited. It seems clear that it has been overwhelmingly supported by those who pursue independence; even the authorities of Catalonia have recognised this reality. There was an undeniable element of self-selection in those who opted to participate in an exercise of, at best, doubtful legal and democratic validity; the result cannot be held up as the undisputed voice of the Catalonian people as a whole.
On balance, the fact that the consultation was allowed by the regular judiciary to take place, despite the decision of the Spanish Constitutional Court, is to be welcomed, although it has been regarded by some as a sign of weakness and apathy towards such a blatant breach of the legal framework. In the eyes of the judges, however, positive intervention to prevent it would have been disproportionate and this is a reasonable conclusion in light of the overall political context. The final percentage of participation may have been around a 35%, which has been heralded as an authentic success by the Government in Catalonia, but which is by no means a majority vote. However, it should not be underestimated by the central authorities in Madrid either.
The last few months have witnessed an antagonistic exchange in an increasingly confrontational relationship between the political authorities in both Catalonia and Madrid. This is extremely regrettable, given that, such a climate of hostility is damaging and counterproductive for all parties. It is unfortunate for Catalonia, Spain and the wider world that, the authorities of Catalonia have knowingly determined to pursue an illegal path; something which is at odds with the constructive and honourable role played by Convergencia I Unió only two decades ago.
This should have never happened, but at the same time, the Spanish Government cannot simply adopt the stance of opposing reform or changes, regardless of the circumstances. For the good of the whole nation, there needs to be a collaborative and productive a dialogue between the central and the regional authorities. This must be facilitated in a manner which is in compliance with the provisions of the Spanish Constitution, from whence the existence and legitimacy of both regional and national government are derived. Nevertheless, Catalonians must be empowered, alongside citizens from the rest of Spain, to discuss their future in the Spanish State, and the result of yesterday’s consultation should be followed by a response from the central Government. Where there is a political appetite for such discussion, engaging in dialogue is a necessary exercise and we should expect our politicians to pursue it. The dialogue does not have to conform to the British model, as each State context is unique. However, the presence of a codified Constitution such as exists in Spain, should not be used as a dam to keep back the tide of change if this was supported by the majority of the citizenship. Perhaps the future of the territorial Spanish framework can be under the umbrella of a Federal State, as suggested by the Socialist Party, the centre-left wing main opposition party. This is a very interesting proposal, but to what extent isn’t Spain already a Federal State?
Javier García Oliva is a Senior Lecturer at the School of Law, Manchester University.
Suggested citation: J. Oliva: Catalonia in Spain? The future ahead (10th November 2014) (available at http://ukconstitutionallaw.org).