Javier García Oliva: Catalonia in Spain: The Significance of the 25th September 2015 Elections

Editors’ note: This post is based upon a conference paper presented at the UKCLA conference ‘Debating the Constitution after the General Election’ held at the University of Manchester on 24  June 2015.

Javier OlivaParliamentary elections will be held in Catalonia on 25th September 2015, over a year earlier than the scheduled date. This decision was made by Artur Mas – leader of the very recently dissolved coalition Convergència i Unió (CiU) and President of the Generalitat de Catalunya – and announced on 14th January 2015. It was the fruit of lengthy discussions between Mas and Oriol Junquera, leader of another pro-independence political party: Esquerra Republicana per Catalunya (ERC), as well as representatives of bodies such as the Asamblea Nacional Catalana and the Asociación de Municipios por la Independencia. All of the players are well-known figures in the political, social and cultural life of Catalonia, and are numbered amongst those who have passionately embraced what has become known as the ‘right to decide’. It is important to note that this concept encompasses something distinct from the right to ‘self-determination’, as the unique Catalan context would not fit into the various categories of ‘self-determination’ recognised by Public International Law.

It should also be emphasised at the outset that, from a territorial point of view, Spain is a hybrid model (Estado autonómico), which is neither a centralist nor a Federal State. Nevertheless, the political tide has clearly carried it in the direction of the latter shore in the years since the enactment of the Spanish Constitution in 1978. According to Art 2 of the Constitution, Spain is a nation, which is composed of nacionalidades and regions. Catalonia comes within the first category, as it is undoubtedly a sophisticated and well-developed territorial entity.

In my previous blog of November 2014, I referred to the landmark events which led to the 9th November 2014 ‘participatory process’. I shall, once again, briefly make reference to some of these key steps, in order to set the scene properly, but the aim of this current piece is to concentrate on what has happened in Catalonia in the course of the last eight months.

Since 12th September 2012 (the National Day of Catalonia), the hypothetical independence of Catalonia has been a topical issue, being hotly contested not only in the rest of Spain, but also within Catalonia itself. The latter point tends to be overlooked in some quarters.

It is interesting to note that the last decade in Catalonia witnessed a 360 degree political shift in the position of CiU towards independence. This political coalition had been in charge of the regional Government for the greatest portion of the democratic period (holding power throughout, with the sole exception of one period when the Socialist Party was at the helm) and it was, traditionally, loyal as a coalition towards the central authorities. Indeed, it supported both the Conservative and the Socialist Parties in the central Government in Madrid during the 1990s. Yet surprisingly, over the last few years, despite being ideologically conservative, CiU became very close to ERC, a left-wing political party which always pursued independence, and which had previously been at odds with CiU in relation to the economy and social issues. Then, for a variety of reasons (e.g. the rejection by the Spanish Government of the Basque fiscal model for Catalonia; the declaration, by the Spanish Constitutional Court (STC 31/2010), of the unconstitutional nature of some articles of the 2006 Reformed Law of Catalonia, etc.), from 12th September 2012 CiU made the independence of Catalonia its main goal. However, this shift had far reaching repercussions, and the new emphasis on independence generated insurmountable tensions within both parties of the coalition. On 14th June 2015, Unió, the minority ally of Convergència, held an internal election in order to decide its overall position on the non-negotiable ‘right to decide’ model set out by Artur Mas. Albeit by a very small majority (just 50.9% of the votes), Unió decided to support the ‘third way’ proposed by its leader, Durán i LLeida, which favours remaining within Spain, but on a dramatically altered political and legal basis. Only three days later, on 17th June 2015, Unió announced that its three ministers would leave the Catalan Government, due to the differences with Convergència about the most appropriate way in which to pursue independence. This was no great surprise, as for a time the coalition between the two parties had become increasingly unstable, as disagreements smouldered. The situation was only exacerbated when, after the vote on 14th June, Convergència gave its partner an ultimatum to accept its approach, thereby pouring paraffin on the flames. Although Unió initially emphasized that the withdrawal of its three ministers did not amount to the dissolution of the coalition, in reality an unbridgeable chasm had opened up, and the coalition was dissolved only a few days later.

A referendum about the ‘political future of Catalonia’ had been included within the agreement of governance signed on 18th December 2012, by both CiU and ERC. Only a few months later, on 23rd January 2013, the Parliament of Catalonia adopted the ‘Declaration of Sovereignty of the Right to Decide of the Catalan People’, which stated that the people of Catalonia had – by reason of democratic legitimacy- the character of a sovereign political and legal entity. Only a few months later, on 8th May 2013, the Declaration was provisionally suspended by the Spanish Constitutional Court.

Despite this finding, given by the judicial authority entrusted with safeguarding the Constitution from which the Government of Catalonia derived its own powers, the Catalan Government decided to go ahead with the 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 Catalan authorities had not been endorsed by the central authorities.

Crucially, on 25th March 2014 the Spanish Constitutional Court (STC 42/2014), 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 Catalan legislature, found that the principle of sovereignty, as articulated within the 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.

The legal team of the Catalan authorities challenged the analysis of the Spanish Constitutional Court and declared that the 2013 Declaration was political and it was within the remit of Art 145 of Reglamento of the Catalan Parliament. The Constitutional Court agreed with the Catalan legal team as far as the lack of legal force of the controversial Declaration was concerned, but stated that such lack of legal force by no means equated to a lack of civil effects.

The Constitutional Court, in the landmark decision which was the subject of my previous blog, emphasized that the concept of the ‘right to decide’ was not, intrinsically and inevitably, incompatible with the Spanish legal framework, but it could only be exercised in compliance with the mechanisms set out within the 1978 Constitution.

Only 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 ‘right to decide’ referendum.

Nevertheless, despite being confronted with the (general) rejection of legitimacy from both the Constitutional Court and the Spanish legislature, Artur Mas’ team continued with his plan, and the regional authorities approved a law and a decree in September 2014 in order to authorise a ‘popular consultation’. On 29th September, the Constitutional Court once again rejected this, and in response, the Government of Catalonia decided that there would no longer be a ‘right to decide’ consultation, but a ‘process of participation’, which would not be run by public authorities, but undertaken mainly by voluntary associations. This ‘process of participation’ finally took place, as firstly envisaged, on 9th November 2012, and the two questions, previously set out, were maintained.

As distinguished commentators such as Josep Maria Castellá Andreu, from the University of Barcelona, have highlighted, the questions themselves were far from clear. Asking citizens whether they would like Catalonia to be a State, without explaining what sort of State it could become (e.g. Federal or Centralist) was not very helpful. Furthermore, exactly how Catalonia could become a State within another State would have certainly required a more thorough analysis by the regional authorities.

The ‘process of participation’ went ahead, without intervention from the ordinary judiciary to halt the process. Although this could potentially be regarded as a sign of weakness, I am inclined to consider that the alternative would have been perceived as heavy handed and therefore ultimately counterproductive.

This position of positive condemnation from the Spanish Constitutional Court has been maintained in the months following the ‘process of participation’, and three decisions have been made, the first of which being particularly important: STC 31/2015, declares key parts of the September 2014 Law of Catalonia on Consultation unlawful. Furthermore, STC 32/2015 declares the role played the President of the Generalitat as unconstitutional, whilst a very recent decision of June 2015 declares the preparatory acts which led to the ‘process of participation’ as also being unconstitutional.

As stated earlier, the Catalan Government had announced in January 2015 that it was putting forward the elections of the Catalan nacionalidad by over a year, and they would be held on 25th September 2015. However, he emphasized that they would be regarded as elecciones plebiscitarias (a referendum). Strikingly, Mas declared that if the political parties which supported independence (CiU, ERC and CUP) obtained more seats in the Barcelona Parliament than those parties in favour of remaining in Spain (e.g. PP and Ciudadanos), this would be a clear endorsement of the support of the citizens for the independence of Catalonia.

This is, undoubtedly, beyond the powers of the Catalan authorities. It should be emphasized that according to Spanish Law, the power to hold this sort of referendum is not currently in the hands of the Catalonian nacionalidad (or any other nacionalidad or region), and those elections will exclusively pursue the renewal of the Catalan Parliament and Government, in compliance with the provisions of the Spanish Constitution and the 2006 Reformed Law of Catalonia.

Furthermore, this asserted ‘overwhelming support’ for independence is far from clear on the available evidence. In fact, the result of the local and regional elections, held on 25th May 2015, appears to have called into question the potential success of the President of the Generalitat’s plans. They were regarded as a true test of the real strength of pro-independence parties in Catalonia, particularly CiU. On several occasions during the electoral campaign, Mas had referred to the symbolic significance of keeping Barcelona under the control of those pursuing the nationalist agenda. In the event, this did not happen. Following a similar trend to that observed in the other major Spanish cities (including Madrid), a coalition between the local branch of Podemos (the emerging third party in the Spanish political arena) and other left-wing parties has prevented CiU from running the city of Barcelona. The situation was particularly striking in the Catalan capital, as Barcelona Comú, the local branch of Podemos, obtained one counsellor more than CiU. It is telling that the new mayoress, Ada Colau, rejected the possibility of bringing ERC within her local government, as ERC would only have been prepared to participate on condition that Barcelona Comú embraced the ‘right to decide’ journey.

Moreover, despite the constant references to Scotland during the political debate, all of which drastically underestimate the radical differences between the two contexts, the outstanding success of the SNP in the last UK general election has not had an impact on the Catalan scenario, and the ‘revival’ which the SNP experienced following the 2014 referendum has not been paralleled on Catalan soil, at least for the time being.

Furthermore, the most recent poll conducted on 5th July 2015 by La Vanguardia, a leading Catalan newspaper, shows that the support for independence in Catalonia is 4% lower than the support for remaining part of Spain. Other previous polls also seem to suggest that the support for independence in Catalonia is waning, but it is still early days and only last week, Artur Mas announced the establishment of a ‘pro-independence list’ which will bring together not only the two leading pro-independence political parties, Convergencia and ERC, but also, very importantly, members the civil society. The agreement between Convergencia and ERC has been extremely difficult to reach, but it has clearly been favoured by the departure of Unió, which will take part in the elections on its own. The impact of the establishment of this ‘pro-independence list’ on the result of the 25th September 2015 elections remains to be seen.

On another note, the limited action seen from the central executive to date is worrying, as the response from the centre has so far been driven, almost exclusively, by the Constitutional Court. This runs the risk of our judiciary becoming polarised on this issue, which would be a highly undesirable development for Spain. In our quasi-Federal State, the central executive must not languish in a passive position, but should of necessity do its upmost to proactively offer a political solution to what is in reality a political controversy.

Yet having made this point, to do justice to the Spanish Government, they did not initiate this process, and the consequences of illegal actions cannot be laid at their door. There can be no justification whatsoever for the actions of the Catalan Government and its consistent willingness in recent years to deliberately break the law and disregard judicial process. Regrettably, they must be criticised for having failed to pursue alternative, lawful, paths for change, aside from addressing the Lower House of the Spanish Parliament, as stated earlier. The likelihood of succeeding through legitimate means cannot be weighed in the balance by governmental authorities and respecting the Constitution cannot be seen as a choice. It is simply not acceptable for those entrusted to serve their fellow citizens to decide whether it is expedient to follow the Rule of Law. In life important things are often challenging and may require a considerable amount of time, but this is not a reason to try to take shortcuts and suspend the legal safeguards in place for the collective good. Regional authorities in a democratic State are bound to respect the same law as everybody else.

Undoubtedly, the position of Catalonia within the Spanish State could be modified through recognised democratic and legal processes. But in order for this to happen, the provisions of the Spanish Constitution of 1978, which commendably evidenced how long standing differences could be left behind, and which was also overwhelmingly approved by Catalan citizens, will have to be respected. It cannot be claimed that Catalonia is any way bound to forever remain within Spain, but it is difficult to understand or justify why the Catalan authorities chose not to follow the proper legal procedures to question the position of Catalonia in Spain. There are a variety of legitimate routes to achieve this reasonable goal, including the proposal of constitutional reform before the Lower House of the Spanish Parliament and an empowerment of Catalonia to hold a referendum, by means a reform of the Ley Orgánica 2/1980 on Referenda. A thorough analysis of all these constitutional instruments is certainly beyond the scope of this blog however.

In the meantime, it is a cause of serious concern that the leader of a nacionalidad with more than 8 millions of inhabitants has publicly stated that ‘if the 25th September referendum succeeds’ (and it should be stressed once again that in legal terms this will not be a referendum, but just an election of the Catalan nacionalidad), the new Parliament will approve, in its first meeting, the Unilateral Declaration of Independence.

In this demoralising scenario, where illegality is embraced for political ends and constitutional safeguards are tossed aside, the path followed by Convergència sadly provides no guidance or useful lessons for the fascinating discussions currently taking place on the UK territorial model.

However, if the future sees a change of direction, and Convergència resumes its role as the serious and law-abiding political player which for many years contributed positively towards the life of the nation, I have no doubt that valuable insights could be sought and applied to the UK context. It is unfortunate that in the current turmoil and confusion, we tend to forget all too easily that the Spanish territorial model has been a source of inspiration for scholars and citizens alike. It has in fact worked relatively well throughout the decades of the democratic era, thanks to its careful design and sophisticated nature. It is to be hoped that events in Spain will unfold in a way which once again allows its strength and creative character to shine through the fog of political debate.

Dr Javier García Oliva is a Senior Lecturer at the School of Law, Manchester University.

(Suggested citation: J. Oliva, ‘Catalonia in Spain: The Significance of the 25th September 2015 Elections’ (24th Jul 2015) (available at http://ukconstitutionallaw.org))