Javier Garcia Oliva: Establishing a Legally and Politically Acceptable Regional President for Catalonia: The Quest Continues

Anyone accustomed to walking in rugged terrain knows the feeling of anticipating reaching the summit, only to discover that what appeared to be the brow of the hill is, in fact, only the beginning of a further upward slope. For many of us, the ongoing crisis in Catalonia induces a similar sensation. An apparent crunch point arrives, but rather achieving any definitive impact, it only seems to usher in yet more uncertainty and wrangling. Tuesday 30th January was expected to see the election of the new regional President, but at almost the eleventh hour the speaker of the Catalan Parliament announced that this decision was effectively on ice.  For reasons which we shall explore, this was a conclusion which should be applauded. By declining to vote to install Carles Puigdemont in defiance of a judicial ruling, albeit reluctantly, the newly elected regional authorities demonstrated a desire to work within the constitutional framework.  However, it still does not signal that an end to the prevailing uncertainty is in sight.

Recapping the story so far in any detail would result in this becoming a behemoth blog. Readers may, therefore, find it helpful to also consult previous commentary on this topic, from October last year, as well as 2015 and 2014. In a nutshell, pro-independence feeling began to rise in 2010, following a decision of the Spanish Constitutional Court, which held some of the provisions of the reformed regional mini-constitution to be incompatible with the national Constitution. The Spanish Constitutional Court ruled on two occasions that the regional Parliament did not have the legal power to hold a proposed independence referendum. Nevertheless, in 2017, after a bitter struggle in the Catalan assembly, during which 52 opposition members left the chamber in protest at what they claimed was an abuse of process by the ruling parties, enabling legislation for a referendum was finally passed after an 11 hour debate. The central authorities acted rapidly and the legislation was suspended. Yet despite the unlawful status of the referendum, President Puigdemont went ahead.

In pragmatic terms, it is clear that the intractable stance of the Spanish Prime Minister Mariano Rajoy, and the refusal of Madrid to enter into dialogue, undoubtedly further helped to inflame, rather than diffuse, the tensions. Moreover,  portraying the Spanish central Government as blameless in this saga would be inaccurate, to say the very least. However, it is highly significant that the national opposition leader Pedro Sanchez supported Rajoy in seeking to restore legality to Catalonia, as the majority of national political figures were not prepared to condone actions outside of the rule of law and wider legal framework.  After the vote, Puigdemont declared independence, and then immediately suspended it. In response, Rajoy threatened to trigger Article 155 of the Constitution if the declaration was not retracted and legality restored, the effect of this provision being the suspension of regional Government in Catalonia and direct rule from Madrid.  Rather than provide any clarity about his declaration, Puigdemont continued to demand dialogue on Catalan independence , but having refused talks at an earlier stage, Madrid was now backed into a corner and unable to accede to this request. In fact, by this point, to grant it would have been to reward the illegal behaviour of Puigdemont and his supporters.

The stand-off may well have come from a calamitous miscalculation by both sides. The frustration of the pro-independence politicians at being stonewalled by the central authorities led them to try and force Rajoy’s hand in agreeing to talks. Regrettably, however, when they resorted to unlawful measures, their tactics inevitably achieved the exact opposite effect, and even those who were distinctly unimpressed with Rajoy’s handling of the situation recognised that he could not be blackmailed by criminal behaviour.  In an effort to find an honourable compromise, Mariano Rajoy and Pedro Sánchez offered to steer a middle course and work on mechanisms for constitutional reform, but Puigdemont rejected this as inadequate. Article 155 was inevitably triggered and the regional Parliament dissolved. Fresh elections took place on 21st December 2017 but the results did not provide a clean resolution. Grouped together, the pro-independence parties have a majority, but a smaller one than before the dissolution, holding 70 of the 135 seats. However, 5 of those 70 representatives remain in Brussels, where they fled in order to avoid facing trial in Spain, after the Spanish Attorney General, José Manuel Maza, laid charges of rebellion, sedition and misuse of public funds at the Audiencia Nacional.  Amongst them is Puigdemont, which made his re-instatement as President on Tuesday 30th January so challenging.

The setting up of the ‘Mesa’ or Regional Parliamentary Steering Group on Wednesday 17th January was a tense and stormy process. The members of the Mesa are elected by the representatives in the regional Parliament, and the two main contenders were Roger Torrent (from ERC, a pro-independence party) and José María Espejo Saavedra from Ciudadanos, which is both pro-remain and the party with the largest share of the vote in the December elections. The Ciudadanos leader, Inés Arrimadas, has been dubbed the darling of the ‘silent majority’,  and was at this point still an alternative candidate for the regional presidency.  It was accepted that the election of the Mesa would determine whether the pro-independence or pro-Spanish faction had an operative majority in Parliament, and therefore, effectively, whether Puigdemont or Arrimadas would be put forward as President in due course.  The voting required only a simple majority at the first round, which neither candidate managed to secure.  Afterwards, a second round took place, and the pro-independence speaker, Roger Torrent was chosen.

It helped the separatist cause that a declaration of the Spanish Supreme Court enabled three pro-independence representatives currently in prison, on remand for charges relating to the illegal referendum (including the former Catalonian vice-president, Oriol Junqueras),  to vote by proxy.  It is interesting to note that, on this occasion, the ruling of the Court was decisive in assisting the pro-independence cause.  It was also crucial that Podemos (En Comú Podem in Catalonia), the new, alternative left party, had consistently maintained a neutral stance.  Although this party accepts that a lawful referendum should be held, it supports a united Spain and rejects illegal measures, making it unable to ally itself with the pro-independence group.  At the same time, however, it deems the pro-Spain grouping which has coalesced around Arrimadas and Ciudadanos to be insufficiently committed to social issues. This refusal by Podemos to support either side has in practice given the pro-independence alliance the driving seat.

Interestingly, this dimension of the story has not been much discussed in the UK press, but there are striking parallels with the role of the DUP in the present British paradigm.  The balance of power has unexpectedly fallen, albeit temporarily, to a group not ordinarily centre stage.  In many ways, this is a more helpful connection to draw out than that of debates about Scottish Independence.  The political history of relationships between the respective nations is distinct, and the constitutional frameworks within which they are set are constructed along dramatically divergent lines, whether you zoom the focus out as far as codified versus uncodified, and devolved Government as opposed to an autonómico model, or zoom it in to look at the building blocks of legal principles and their underlying assumptions.  Both contexts, however, face continued uncertainty.

Catalonia looks set now to remain in limbo, as neither the central nor regional administrations appear to be heading towards a creative solution.  The pro-independence alliance has control of the Catalan Parliament, but their preferred presidential candidate is currently not prepared to return to Spanish shores. A report of the legal team of the Catalan Parliament had previously affirmed that Puigdemont could not either vote or govern by video link, and the Spanish Constitutional Court subsequently backed this position.  Furthermore, the resolution by the Catalan Parliament to choose a President is a form of secondary legislation, and therefore, if potentially unconstitutional, is liable to be suspended, pursuant to Art 161.2 of the Spanish Constitution, pending a declaration by the Constitutional Court.   This judicial body has ruled that Puigdemont must return to Spain and present himself to the authorities, and it would then be for a court to determine whether he could attend Parliament or exercise his voting rights.  Given that his vice-president was remanded in custody, but permitted to vote by proxy, and essentially the same considerations would be before the court in relation to Puigdemont, an identical conclusion is likely to be reached.  The judicial view, in the case of other Catalan politicians facing criminal charges, has been that their liberty would carry too great a risk of social unrest, reasoning which would probably be applied a fortiori to Puigdemont.

In any event, it is key to understand the fundamental legal underpinning of the charges which Puigdemont is facing. The judicial ruling on the proposed referendum found that such a vote would be without legal basis, and therefore, ultra vires, and in applying public money for what a court had declared to be a wrongful purpose, particularly one with a political end, the Catalan politicians were consciously choosing to break criminal law. Viewing the situation purely from a legal perspective, it must be acknowledged that a juridical system cannot function if some actors are permitted to breach the law with impunity, whilst others are subject to punishment. Equality before the law is a fundamental element of a Western, European understanding of the rule of law.  As Lord Templeman memorably observed in Re M [1994] 1 AC 377, 395 if ‘the executive obey the law as a matter of grace and not as a matter of necessity’ then the rule of law is fatally undermined. It is not appropriate here to stray into the realms of political comment, but from the perspective of the rule of law, political actions must remain within the legal framework, or be restrained.  The central authorities were compelled to respond to enforce the judicial decision if it was not going to be voluntarily respected.

Yet it must be emphasised that the declaration of Torrent on Tuesday 30th demonstrated a renewed and laudable desire to find solutions to this crisis within the rule of law, as the Spanish Government had made it crystal clear that any attempt to have Puigdemont take up office and function as a President, whilst still in Belgium, would result in continued direct rule from Madrid. It was feared, and almost expected, that the pro-independence alliance would nevertheless have attempted to defy the latest judicial pronouncement. Had Puigdemont been declared President, it is hard to imagine any positive outcome in the short-term, as the central authorities would have been squeezed into an even tighter corner than before, and been therefore even less likely to grant any concessions.  The indefinite direct rule which would have inevitably ensued, would have almost certainly triggered civil unrest, and stoked bitterness between the pro-independence and pro-unity supporters in Catalonia, whom we must remember, are at the end of the day neighbours, friends, colleagues and even family members.

Irrespective of how things develop in the long term, the Catalan society needs to be cohesive and mutually respectful, and in stepping away from the confrontational option, Torrent and the independence grouping which he represents have made an important move towards furthering dialogue within a regulated and lawful paradigm.  Hopefully, the appreciative response of the Spanish Prime Minister will herald a search for more conciliatory and imaginative ways forward than we have hitherto seen.  Although the crisis does not seem to be on track for a speedy resolution – as Torrent has indicated that no alternative candidate to Puigdemont will be proposed, and as a result has closed the door on one lawful and pragmatic strategy for resolving the current deadlock – it remains true that this unforced acceptance of a judicial decision, and positive noises from both sides, give much more reason for optimism about a settlement in the longer term than has previously been the case.

I am most grateful to Alison Young for her insightful comments and suggestions.

Dr Javier García Oliva, Senior Lecturer in Law, The University of Manchester

(Suggested citation: J. García Oliva, ‘Establishing a Legally and Politically Acceptable Regional President for Catalonia: The Quest Continues’, U.K. Const. L. Blog (2nd Feb 2018) (available at https://ukconstitutionallaw.org/))