Abstract
The Catalan secessionist crisis represents the most serious threat to the Spanish constitutional order since Franco’s dictatorship ended. This chapter explores three dimensions of a possible response to the challenge of the Catalan secessionist movement: the discourse employed, the means used to deploy it and the envisaged result. All of these are articulated considering the relationship between the Catalan secessionist imaginary and constitutionalism. The chapter reveals the degree to which Catalan secessionist discourse employs anti-constitutionalism arguments, the ambiguity in the means used for achieving its goal of the independence and, finally, the commitment to constitutionalism in the post-independence scenario. Accordingly, the chapter traces possible inconsistencies in the Catalan secessionists’ approach to constitutionalism as well as the disorientation that these inconsistencies may produce, both within and outside the movement. The repercussions may even prove relevant to debates in other nations dealing with secession movements, such as Canada and the United Kingdom
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Notes
- 1.
For an overview of the Catalan secession crisis, see Ferreres Comella (2017).
- 2.
Aversion to the reform of the Catalan Statute of Autonomy of 2006 is commonly considered the starting point of the secession crisis. The crisis intensified after the Spanish Constitutional Court invalidated parts of the reform in 2010 (see Spanish Constitutional Court judgment n° 31/2010, of 28 June).
- 3.
From the central government, former socialist President José Luis Rodriguez Zapatero (2004–2011) led efforts to pass the reform while the Catalan counterpart was led by the incumbent socialist President of the Catalan regional Government Pascual Maragall Mira in agreement with the Catalan nationalist leader Artur Mas Gavarró, who at the time headed the dominant opposition party in Catalonia.
- 4.
There have been also several pro-independence participatory processes, for example, the municipal consultations held in 2009–2010, yet the two most important ones, because they were directly carried out by the Catalan regional government, were (i) the so-called participatory process held on 9 November 2014 under Artur Mas Gavarro’s government and (ii) the so-called referendum of 1 October 2017 under Carles Puigdemont Casemajó’s government.
- 5.
Inter alia, because of their importance, the enactment of (i) Law 19/2007, of 6 September, on the referendum of self-determination; (ii) Law 20/2017, of 8 September, on the legal transition and the foundation of the Republic and (iii) the Declaration of Independence of 27 October 2017, a text whose legal standing is uncertain but definitely falls below the rank of legislation, are all relevant.
- 6.
This period begins with the death of General Franco in 1975. However, there is debate regarding the end of the period. Some authors puts the end with the first democratic elections in 1977, others with the approval of the Constitution in 1978, still others after the attempted coup d’état in 1981 and finally some historians end the period with the general elections in 1982, which brought the Socialist Party to power. See Ortuño Anaya (2005), p. 22.
- 7.
For a general perspective of the radical argument in both academic circles and the media, see Pasamar (2018).
- 8.
For a general approach to the historical events of the Spanish Transition, see Carr and Fusi Aizpurua (1981).
- 9.
As an example of this line of argumentation, see Casals Meseguer (2016).
- 10.
For a general account of the participation of the Catalan nationalism in the Spanish Transition, the elaboration of the Spanish Constitution of 1978 and the enactment of the first Catalan Statute of Autonomy of 1979, see Ysàs (1994).
- 11.
See National Transition Advisory Council of the Generalitat de Catalunya, Report n°1 of 25 July 2013, La consulta sobre el futuro politico de Cataluña.
- 12.
Spanish Constitutional Court judgment n° 114/2017, of 17 October, para. 2.b. Previously, in relation to the Basque Country, the Constitutional Court also decided in the same line (judgment n° 103/2008, of 11 September, para. 4).
- 13.
Spanish Constitutional Court judgment n° 42/2014, of 25 March (paras. 3.b and 4).
- 14.
EFE-Barcelona. (2015). Mas ve inviable hacer una propuesta de reforma constitucional desde Cataluña. EcoDiario.es. https://ecodiario.eleconomista.es/politica-eD/noticias/7204202/12/15/Mas-ve-inviable-hacer-una-propuesta-de-reforma-constitucional-desde-Cataluna.html. Accessed 16 February 2020.
- 15.
See the preamble of Law n° 19/2017, of 6 September, on the self-determination referendum, which was declared unconstitutional by the Spanish Constitutional Court (judgment 224/2017, of 17 October). The preamble contains several references to freedom of expression as grounds for the self-determination and holding a referendum. See also Edling and Melia (2019).
- 16.
See, inter alia, the Declaration of Independence of 27 October 2017, which reports the alleged existence of a prosecution in breach of the civil and political fundamental rights of Catalan citizens. See also Jones (2019).
- 17.
ACN (2019). Spanish president boasts of controlling public prosecutor in bid to extradite Puigdemont. Catalannews. https://www.catalannews.com/politics/item/spanish-president-boasts-of-controlling-public-prosecutor-in-bid-to-extradite-puigdemont. Accessed 16 February 2020.
- 18.
Under Article 155 of the Spanish Constitution, the central government dismissed all the members of the Catalan regional government and then took the control, until the regional elections, of the Catalan regional government and its administration.
- 19.
See ACN (2019). Torra to appeal ban from office, attacks Spanish justice system. ElNacional.cat. https://www.elnacional.cat/en/news/torra-appeal-ban-from-office-attacks-spanish-justice_453504_102.html. Accessed 16 February 2020. The President of the regional government faces an ongoing judicial proceeding for disobedience to the electoral authorities for not removing a banner in time of electoral campaign.
- 20.
For a general discussion about Catalonia and the self-determination right from the perspective of international law, see Blanke and Abdelrehim (2014).
- 21.
- 22.
Resolution 742/IX of the Parliament of Catalonia, on the general political orientation of the Government of Catalonia, of 27 September 2012, subsequently ratified by Resolution 5/X of the Parliament of Catalonia, adopting the Declaration of sovereignty and right to decide of the people of Catalonia, of 23 January 2013. These institutional declarations were reinforced by the so-called Pacte Nacional pel Dret a Decidir (National Agreement for the Right to Decide), signed on 26 June 2013 by Catalan secessionist parties and some civil and cultural pro-secessionist associations.
- 23.
For a recent debate over the relationship between democracy and constitutionalism (or between legality and rule of law) applied to the Catalan case, see Tudela Aranda (2016), pp. 478–485.
- 24.
Demonstrations have been held on Catalonia’s national holiday (11 September) every year since 2010. Catalan political secessionist leaders, but also social and cultural leaders, have defended their ideas in all the media channels, from the classical press to the TV and social networks. Finally, Catalan secessionist political parties have been represented in Catalan and central institutions where they have wielded political power, especially at the local and regional levels of government.
- 25.
See Spanish Constitutional judgment n° 42/2014, of 25 March (para. 4.c).
- 26.
Ibid.
- 27.
See supra note n° 3.
- 28.
Since 2010, there have been five central elections and in all of them most secessionist parties participated. Only one minor faction, the Candidatura d’Unitat Popular (CUP), abstained from the four previous general elections. However, in the most recent election in November 2019, the CUP participated for the first time and won two representatives in the Congreso de los Diputados.
- 29.
Article 150.2 of the Spanish Constitution allows for the transfer of State competences, as long as this transfer to an Autonomous Community is made via an organic law (which requires an absolute majority of the Spanish Parliament). On 16 January 2014, the Parliament of Catalonia approved a petition of the transfer to the Spanish Parliament invoking Article 150.2. On 8 April 2014, the Spanish Parliament voted it down.
- 30.
There are countless initiatives, most of which are symbolic political resolutions that have been approved by the Catalan Parliament. Only as an example and because its relevance, see the Declaration of Sovereignty of 23 January 2013 in which the Parliament called for the exercise of the “right to decide” to begin.
- 31.
See Law 10/2014, of 26 September 2014, on popular consultation lacking the character of a referendum and other forms of citizen participation, and Decree 192/2014, of 27 September, on the call for a popular consultation about the political future of Catalonia.
- 32.
First, on 29 September 2014 the Spanish Constitutional Court declared the suspension of both the Law and the Decree (see the Court’s decision of 30 September 2014). Despite the suspension, the Catalan Government decided to carry on with the participatory process. After the vote was held, the Spanish Constitutional Court declared some parts of the legislation in question unconstitutional (see Judgment n° 31/2015, of 25 February).
- 33.
See the Judgment of the Catalonia High Court of 13 March 2017 after ratified by the Spanish Supreme Court in its Judgment n° 722/2018, of 23 January.
- 34.
See supra note n° 5.
- 35.
See Judgments of the Spanish Constitutional Court n° 114/2017, of 17 October, regarding the referendum of self-determination and n° 124/2017, of 8 November, regarding the on the legal transition and the foundation of the Republic.
- 36.
See supra note n° 5.
- 37.
See Judgment of the Spanish Supreme Court n° 459/2019, of 14 October.
- 38.
Article 155 reads as follows (translation of the Spanish Constitution provided by the Official Spanish Gazette): “1. If an Autonomous Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way seriously prejudicing the general interests of Spain, the Government, after lodging a complaint with the President of the Autonomous Community and failing to receive satisfaction therefore, may, following approval granted by an absolute majority of the Senate, take measures necessary in order to compel the latter forcibly to meet said obligations, or in order to protect the above-mentioned general interests. 2. With a view to implementing the measures provided in the foregoing clause, the Government may issue instructions to all the authorities of the Autonomous Communities”.
To activate the measures allowed by recourse to this provision, then President of Spain, Mariano Rajoy Brey, sent a “requirement of compliance” to the President of Catalonia, Carles Puigdemont Casamajó, on 11 October 2017. The requirement of compliance is a written statement which points out the regional government’s non-compliance with its constitutional obligations and the prejudice caused to the general interest of Spain. In this case, the Spanish Government asked for clarification regarding the nature and effects of the Declaration of Independence of 27 October 2017 and, specifically, whether the Declaration was legally binding, which, the requirement pointed out, would be a breach of constitutional legality requiring termination of all its effects. Following the ambiguous response of the Catalan regional government, the central government declared that the requirement had not been met because of lack of clarity in the response. Several measures intended to bring Catalan institutions back under control had been authorized on 21 October 2017, and these were subsequently approved by the Senate on 27 October 2017.
- 39.
See supra note n° 19. Joaquim Torra Pla was criminally convicted in first instance for disobedience for not removing a banner in an official building when elections were being held. See Judgment of the Catalonia High Court n° 149/2019, of 19 December 2019. The Spanish Supreme Court confirmed the conviction by its judgment nº 477/2020, of 28 September 2020.
- 40.
One example, inter alia, are the demonstrations between 14 and 18 October 2019 just after the judgment of Spanish Supreme Court convicting several pro-independence leaders was issued.
- 41.
See the general elections held in 28 April 2019 and 10 November 2019.
- 42.
See the Catalan regional elections held in 21 December 2017.
- 43.
In all the judicial processes closed or opened against pro-independence leaders and other citizens involved in the secessionist crisis, never have the defendants sought to delegitimize the constitutional system by abstaining from deploying any legal recourse—such as the right to defense and to appeal—available under the constitutional system.
- 44.
All convicted pro-independence leaders, both inside and outside the courtroom, have insisted that they will take their cases all the way to the European Court of Human Rights. See Val (2019). At the same time, the election of some of these leaders to the European Parliament, one of whom, Oriol Junqueres Vies, convicted in Spain and other three residing outside Spain but with pending European Arrest Warrants, Antoni Comín Oliveres, Clara Ponsatí Obiols, Carles Puigdemont Casemajó, have activated the intervention of the Court of Justice of the European Union. In the case of Oriol Junqueres Vies, the Spanish Supreme Court sent a preliminary reference to the Court of Justice which was decided by its judgment in Case C-502/19, of 19 December 2019, criminal proceedings against Oriol Junqueres Vies, ECLI:EU:C:2019:1115. In the case of Antoni Comín Oliveres and Carles Puigdemont Casemajó, at this stage there are pending proceedings before the General Court, which only has rejected the interim measures requested by the pro-independence leaders (Order of the President of the General Court in Case T-388/19 R, of 1 July 2019, Carles Puigdemont Casamajó and Antoni Comín Oliveres v the European Parliament, ECLI:EU:T:2019:467).
- 45.
Taking part in the negotiations are delegations from both the central and regional governments. See ACN (2020). Negotiation table between Spanish and Catalan government to begin Wednesday, February 26. https://www.catalannews.com/politics/item/negotiation-table-between-spanish-and-catalan-governments-to-begin-wednesday-february-26. Accessed 16 February 2020.
- 46.
This was an advisory body of the Catalan Government, created by Decree 113/2013, of 12 February.
- 47.
Catalan Advisory Council for the National Transition, Report n° 10, 14 July 2014, p. 20.
- 48.
Ibid. at pp. 19–20.
- 49.
Ibid. at pp. 20–22.
- 50.
Ibid.
- 51.
Catalan Advisory Council for the National Transition, Report n° 16, 28 July 2014, pp. 10–14.
- 52.
Catalan Advisory Council for the National Transition, Report n° 14, 28 July 2014, pp. 6–7.
- 53.
This Law was declared unconstitutional by the Spanish Constitutional Court in Judgment n° 124/2017, of 8 November 2017.
- 54.
See Article 70 Law 20/2017. The judicial power would be governed by two bodies: the Government Section of the Supreme Court and a Mixed Commission consisting of an equal number of representatives from the Supreme Court and the Catalan Government.
- 55.
The idea is substituting a Constitutional Court by two institutions. First, the so-called Council for Democratic Guarantees would exercise ex-ante constitutional review of legislation, that is, it would examine proposed legislation before it is passed (Article 61 Law 20/2017). Second, a special section in the Supreme Court would be in charge of protecting the fundamental rights established by the Catalan constitution (Article 74 Law 20/2017). Thus, the new constitutional order would lack a mechanism for ex-post constitutional review of legislation on grounds other than fundamental rights violations.
- 56.
See Title IV (“Institutional system”) of Law 20/2017.
- 57.
See Title II (“Rights and duties”) and Title V (“Judicial power and its administration”) of Law 20/2017.
- 58.
See Title VII (“Constituent process”) of Law 20/2017.
- 59.
The Resolution was declared unconstitutional by the Spanish Constitutional Court Judgment n° 259/2015, of 2 December.
- 60.
The Resolution 263/XI was based on Resolution 5/XI, of 20 January 2016, of the Catalan Parliament which created the Study Commission for the Constituent Process. The Spanish Constitutional Court declared that Resolution unconstitutional, therefore the Study Commission was also held incompatible with the Constitution (see Order of the Court n° 141/2016, of 19 July). However, the Study Commission delivered its conclusions regardless, and these were approved by the Parliament in its Resolution 263/XI. The Constitutional Court found the Resolution a direct violation of its previous decisions and directly commanded the Catalan Parliament to obey (Order of the Court 124/2017, of 19 September).
- 61.
See paras. 4–11 of Resolution 263/XI.
- 62.
Ibid. at para. 6.
- 63.
Ibid.
- 64.
Ibid.
- 65.
Ibid. at paras. 7–10.
References
Ackerman, B. (1997). The Rise of World Constitutionalism. Virginia Law Review, 83, 771–797.
Aguado Renedo, C. (2013). Sobre un eventual referéndum consultivo en el proceso soberanista catalán. Cuadernos de Alzate, 46–47, 27–47.
Barceló Serramalera, M. (Ed.). (2015). El derecho a decidir: teoría y práctica de un nuevo derecho. Barcelona: Atelier.
Bellamy, R., & Castiglione, D. (1997). Constitutionalism and Democracy – Political Theory and the American Constitution. British Journal of Political Science, 27(4), 595–618.
Bernadí Gil, X. (2019). L’aplicació de l’article 155 de la Constitució española al Govern i l’Administració de la Generalitat de Catalunya. Revista catalana de dret públic, (special issue), 21–44.
Blanke, H., & Abdelrehim, Y. (2014). Catalonia and the Right to Self-Determination from the Perspective of International Law. Max Planck Yearbook of United Nations Law Online, 18(1), 532–564.
Carr, R., & Fusi Aizpurua, J. P. (1981). Spain. Dictatorship to Democracy. New York: HarperCollins.
Casals Meseguer, X. (2016). La Transición Española. El voto ignorado de las armas. Barcelona: Pasado & Presente.
Costa, J. (2017). Does Catalonia Have the Right to Self-Determination? Catalonia Background Information, Public Diplomacy Council of Catalonia (pp. 1–5). Series E/2017/2.1/EN.
De Carreras, F. (2014). ¿Puede celebrarse un referéndum en Cataluña? El Cronista del Estado Social y Democrático de Derecho, 42, 24–35.
De Miguel Bárcena, J. (2018). El proceso soberanista ante el Tribunal Constitucional. Revista Española de Derecho Constitucional, 113, 133–166.
Edling, A., & Melia, T. (2019). A Troubling Trend: Free Expression Under Fire in Catalonia. Pen America. www.pen.org/free-expression-catalonia. Accessed 16 Feb 2020.
Elbal, I. (2019). Principio de legalidad y arbitrariedad para Catalunya. Eldiario.es. https://www.eldiario.es/contrapoder/Principio-legalidad-arbitrariedad-Catalunya_6_955114511.html. Accessed 16 Feb 2020.
Ferreres Comella, V. (2013). The Constitution of Spain. A Contextual Analysis. Oxford/Portland: Hart Publishing.
Ferreres Comella, V. (2016). Cataluña y el derecho a decidir. Teoría y Realidad Constitucional, 37, 461–475.
Ferreres Comella, V. (2017). The Independence Vote in Catalonia – The Constitutional Crisis of October 1. International Journal of Constitutional Law Blog. http://www.iconnectblog.com/2017/10/i-connect-symposium-the-independence-vote-in-catalonia-constitutional-crisis/. Accessed 16 Feb2020.
Gallego, F. (2008). El mito de la Transición. La crisis del franquismo y los orígenes de la democracia (1973–1977). Barcelona: Editorial Crítica.
González Pascual, M. (2014). Austerity Measures and Welfare Rights. The Spanish Constitutional System Under Stress. European Journal of Social Law, 1(2), 116–127.
Jones, S. (2019). Catalan Leaders’ Lawyers Attacks “Vaudeville” Case as Trials Begins. The Guardian. www.theguardian.com/world/2019/feb/12/trial-of-catalan-separatist-leaders-begins-in-madrid. Accessed 16 Feb 2020.
Kennedy, D. (2006). The Rise & Fall of Classical Legal Thought. Washington, DC: Beard Books.
López Hernández, J. (2017). El derecho a decidir. La vía catalana. Tafalla: Txalaparta.
Marinzel, A. (2014). Catalonia: The Quest for Independence from Spain. Senior Honors Project, 39, 1–32.
Ortuño Anaya, P. (2005). Los socialistas europeos y la transición española (1959–1977). Madrid: Marcial Pons.
Pasamar, G. (2018). Los relatos escépticos sobre la Transición española: origen y claves políticas e interpretativas. Les Chaiers de Framespa, 27. http://journals.openedition.org/framespa/4738. Accessed 16 Feb 2020.
Roig Molés, E. (2006). La Reforma del Estado de las Autonomías: ¿Ruptura o consolidación del modelo constitucional de 1978? Comentario al artículo del profesor Pedro Cruz Villalón. Revista d’Estudis autonòmics i federals, 3, 149–156.
Rubio Llorente, F. (2013). Un referéndum que nadie quiere. El País. https://elpais.com/elpais/2013/02/01/opinion/1359716070_365196.html. Accessed 16 Feb 2020.
Sala, G. (2013). La politización del Tribunal Constitucional: ¿Desde cuándo y hasta cuándo? Eldiario.es. https://www.eldiario.es/agendapublica/nueva-politica/politizacion-Tribunal-Constitucional_0_177082923.html. Accessed 16 Feb 2020.
Santjaume Calvet, M. (2016). The Morality of Secession: Secessionist and Antisecessionist Arguments in the Catalan Case. In X. Cuadras Morató (Ed.), Catalonia: A New Independent State in Europe? A Debate on Secession Within the European Union (pp. 82–106). London: Routledge.
Solanes Mullor, J. (2019). The Implications of the Otegi Case for the Legitimacy of the Spanish Judiciary. ECtHR 6 February 2019, Case Nos. 4184/15 and 4 Other Applications. Otegi Mondragon and Others v Spain. European Constitutional Law Review, 15(3), 574–588.
Tornos Mas, J. (2014). El problema catalán: una solución razonable. El Cronista del Estado social y democrático de derecho, 42, 44–53.
Tudela Aranda, J. (2016). El derecho a decidir y el principio democrático. Teoría y Realidad Constitucional, 37, 477–497.
Urías, J. (2020). Spain Has a Problem with Its Judiciary. Verfassungsblog. https://verfassungsblog.de/spain-has-a-problem-with-its-judiciary. Accessed 16 Feb 2020.
Val, E. (2019). Estrasburgo, la última palabra. La Vanguardia. https://www.lavanguardia.com/politica/20190210/46324222806/tedh-estrasburgo-juicio-proces-litigios.html. Accessed 16 Feb 2020.
Vv.A.a. (2013). Foro Especial: Autodeterminación. Cuadernos de Alzate, 46–47, 27–244.
Ysàs, P. (1994). Democracia y autonomía en la transición española. Ayer: Revista de Historia Contemporánea, 15, 77–107.
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Solanes Mullor, J. (2021). The Catalan Secessionists’ Challenge: Reconciling Their Quest for Independence and Constitutionalism. In: Belov, M. (eds) Territorial Politics and Secession. Federalism and Internal Conflicts. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-64402-4_11
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