Spain as a Democratic State Governed by the Rule of Law and the Catalan Secessionist Process

Abstract

This work begins by recalling the characteristic features of the political system and model of territorial division of power established in the 1978 Spanish Constitution after a complicated but successful process of transition to democracy. Spain was constituted as a politically decentralized, social and democratic state governed by the rule of law, a compromise solution between the centralist tradition and the demands of peripheral nationalisms. Although this original formula has been progressively deployed with clearly positive results, it has come under threat from the challenge posed by the secessionist forces in Catalonia and the Basque Country, seriously endangering coexistence. In this regard, the work first analyses the Ibarretxe Plan, the confederal proposal of the president of the Basque government approved in 2004 by the Basque Parliament and rejected by the lower house of the Spanish Parliament. It then examines the most relevant sequences of the secessionist process that has unfolded in Catalonia over the last decade and which culminated in October 2017 in an illegal referendum and the unilateral declaration of independence approved by the regional parliament. It also analyses the response of Spanish institutions to attempts at constitutional rupture and its possible impact on the democratic quality of Spain and its reputation as a state governed by the rule of law.

1 The 1978 Constitution as the Culmination of the Process of Transition to Democracy

Following the death of General Franco, the dictator who ruled Spain for 40 years (1936/39–1975), the monarchy was established in the figure of King Juan Carlos I, who, in his coronation speech, signalled his intention to establish a parliamentary monarchy (not an authoritarian one) and to be king of all Spaniards, without exclusions. Thereafter began a period—not without frights and enormous challenges—of democratic transition, one of the brightest chapters in the country’s chequered constitutional history.

This was neither an unusual nor strictly original operation. It took place within a context of universal expansion of democracy, which had been gaining ground around the world in the last decades of the twentieth century, and it displayed some common features, such as the gradual delegitimization of the former authoritarian regime, which lacked respectability and had been isolated and stigmatized in the international order. However, in the case of Spain, certain specific factors meant that the process faced greater objective challenges than those in Greece or Portugal: the resurgence of various strains of terrorism, a deep economic crisis, and the ostensible hostility of most of the senior military officials. Such a starting point was not exactly grounds for optimism.

But the key players in this process (Prime Minister Adolfo Suárez, leader of the reformists from the Francoist regime, and the representatives of the democratic opposition) proved able to interpret the majority desire of Spanish society at that time—for whom the memory of a tragic civil war was still fresh—for a peaceful transition, devoid of trauma, score-settling and revanchism, that would not repeat the mistakes of the past. Thanks to the negotiating skills of those political leaders, a hybrid formula emerged, combining elements of reform, as the law was not broken, with elements of rupture, as the final outcome was unequivocally democratic, a system diametrically opposed to Francoism. That was the secret to its success.

Its originality lay in the procedure followed to overcome the reform/rupture dilemma. Ultimately, it was the mechanisms provided for in the Francoist regime’s Fundamental Laws themselves that were used to amend them: the Law for Political Reform,¹ the “eighth fundamental law”, was passed, doing away with the seven previous ones. It was necessary to reassure the regime politicians, guaranteeing an orderly, controlled evolution that would not demand accountability, while also convincing the leaders of the democratic opposition that this was the only viable solution. There was no alternative: the revolutionary rupture was an adventure, a leap of faith that the majority did not want, and there was a finite capacity to pressure and mobilize; there was no margin to oust the reformists from power, establish a provisional government, and wipe the slate clean. The cost of repression by the powers that be or a violent insurrection was too high. Both sides were aware that the only way out was compromise, consensus, that they had no choice but to reach an understanding. And the political class rose to the historical occasion, displaying a remarkable degree of good sense, responsibility, and conciliatory goodwill.

The pact between the vast majority of political forces enabled, for the first time in Spain, a constitution for all, as opposed to one imposed by those then in power. This contributed decisively to Spain’s transformation into a fully comparable democracy, integrated in Europe, and marked the start of the longest period of freedom and well-being in the country’s history. The new constitution was approved by the overwhelming majority of the Congreso de los Diputados (the lower house of the Spanish parliament): 325 votes in favour (including those of Convergència i Unió [Convergence and Union, CiU], the main Catalan nationalist party), 6 against and 14 abstentions. On 6 December 1978, the Spanish people endorsed the constitutional text, with a vote of 88% in favour and fewer than 8% against. The abstention rate was 33% (somewhat higher in the Basque Country). In Catalonia, the percentage of votes in favour (90.5%) was even higher than the national average.

2 Spain as a Social and Democratic State Governed by the Rule of Law

This article will not examine the state’s social dimension as such an analysis lies beyond the scope of its stated purpose.

Under Article 1 of the Spanish Constitution [hereinafter, CE], “Spain is hereby established as a social and democratic State, subject to the rule of law, which advocates as the highest values of its legal order, liberty, justice, equality and political pluralism.” Although these three elements are conceptually distinct (each descriptor has a specific meaning and its own history), they must be interpreted jointly, comprehensively, rather than in isolation, as they are not juxtaposed, but reciprocally condition and limit each other. Such a synthetic interpretation is not easy, as these concepts are controversial from the start, expressing aspirations that are difficult to reconcile, rife with tensions and mutual contradictions. Witness the dialectical tension between the rule of law and a democratic state: democracy cannot lead to despotism or the tyranny of the majority, but rather must respect the requirements of the rule of law.

2.1 The Rule of Law

The idea of the legal limitation of political power, of authorities subject to legal rules in the exercise of their competences, of a government of laws not of men, is reflected in Articles 1 and 9 CE, with Article 9.1 CE enshrining the subjection of public authorities and citizens to the Constitution and all other legal provisions. This supremacy of the law is guaranteed through the rigidity and control of the constitutionality of laws.

Article 9.3 CE guarantees “the principle of legality, the hierarchy of legal provisions, the publicity of legal enactments, the non-retroactivity of punitive measures that are unfavourable to or restrict individual rights, the certainty that the rule of law will prevail, the accountability of the public authorities, and the prohibition against arbitrary action on the part of the latter”.

Spain’s definition as a state governed by the rule of law is also embodied in an institutional design that respects the principle of the separation of powers, with an independent judiciary, subject to the rule of law (Part VI), a Constitutional Court (Part IX) as the ultimate guarantor of the constitutionality of laws, and a public administration fully subject to justice and the law (Articles 103.1 and 106.1). Nor can we forget, of course, the full catalogue of effectively guaranteed rights and freedoms (Part I), which are the foundation of political order and social peace (Article 10.1) and operate as an unassailable limit on public and private power.

2.2 A Democratic State

This is another of the defining features of the form taken by the Spanish state. It is the backbone of the political system, the foundation of the entire legal-political order. In this regard, the 1978 Constitution, which put an end to 40 years of the exercise of undemocratic power and three years of transition, clearly sets itself apart from the authoritarian way of thinking that had prevailed throughout most of Spain’s constitutional history.

This constitutional definition logically entails the assumption of a specific political philosophy, which can be summarized in two points: (1) a clear, defined criterion regarding the holder of sovereignty; and (2) a pluralist and participatory conception of the political process.

The first condition to classify a system as democratic is the recognition that sovereignty lies with the people. To this end, Article 1.2 CE provides, “National sovereignty is vested in the Spanish people, from whom emanate the powers of the State.” The aim is to underscore the indivisibility of the sovereignty, which is predicable only of the Spanish nation as a whole, contrary to the proposals of the Basque and Catalan nationalist groups, which postulated a fragmented or shared sovereignty, of a confederal nature, to be vested in the various nationalities or peoples that make up Spain.

The Spanish people have the final say and, therefore, are masters of their destiny. It is they who hold the constituent power, which is a de facto, pre-juridical power. However, once the Constitution enters into force, the sovereignty is juridified: it is the constitutional democracy. The affirmation of popular sovereignty entails the recognition of universal suffrage in all types of elections (Article 68.5). When coupled with the fact that, in a parliamentary regime such as Spain’s, the government is bound to Congress by a relationship of confidence, the democratic foundation of the three classic powers of the state is directly or indirectly guaranteed.

The democratic principle also has a subjective facet, which is enshrined in Article 23.1 CE: “Citizens have the right to participate in public affairs, directly or through representatives freely elected in periodic elections by universal suffrage.” Political participation is not only a principle; it is a true fundamental right.

Democracy is equivalent to self-government. The consent of the governed is the ultimate source of legitimacy of power and it is not presumed, but reliably verifiable through fair and competitive elections. Citizens are trusted to decide for themselves, without paternalistic tutelage. But democracy as a system of organization of political co-existence is not a matter solely of legitimacy of origin, not simply a means of deciding who will temporarily exercise power. That is a necessary, but insufficient condition. This legitimacy of origin must be coupled with legitimacy of exercise because democracy is also an answer to the question of “how” one governs (not just “who” governs).³

In a constitutional democracy such as Spain’s, political power is divided and limited. Political leaders are accountable to those who have elected them. And that accountability is twofold. First, there is legal accountability. In a state governed by the rule of law, the exercise of power is subject to limits and controls; potential abuses can be reported to independent courts, which will impose, where appropriate, the established sanctions (there are no loopholes for the immunity of power). Second, there is political accountability, whereby leaders must obtain and periodically win anew the confidence of the governed, subjecting themselves to the electoral test and accepting the outcome. The Spanish constitutional system undeniably meets these parameters.

The second characteristic feature of a state that defines itself as democratic is a pluralistic conception of society. In contrast to authoritarian conceptions that consider diversity or dissidence incompatible with a political order built on seamless unity, on unanimous adherence, a pluralistic democracy views society as a network of groups with different goals. This pluralism of both ideology (beliefs, values or opinions) and interests is understood to be natural, consubstantial with an “open” free society (Popper). In addition to being a fact that one registers, it is an asset, something positive. Differences and nuances are a source of enrichment, not a hindrance or nuisance.

The Spanish constitutional text amply reflects this pluralistic approach. Not only does it accept criticism and the presence of adverse groups (not “enemies”, as that is a different dialectic that leads to the elimination of those who dissent) as an inevitability, it recognizes the important role of the political opposition as an instrument of control conducive to the system’s proper functioning and as an alternative (alteration being a sign of democratic health). In Spain’s case, the Constitution outlines a very broad framework or boundary of play within which very different options can be legitimately advocated. The authors went to great pains to emphasize the inclusive nature of the text, so that everyone could feel comfortable and co-exist under the same rules.

What are the limits of the political pluralism enshrined in the Spanish Constitution? Here we must address the dilemma of “open” vs “defensive” or “militant” democracy, depending on the attitude taken towards those who declare themselves avowed enemies of the democratic system (whether on the left or right) and whose victory could imperil the very existence of the democratic order. In a defensive democracy (streitbare Demokratie), undemocratic forces are excluded, considered beyond the law (as occurred, for example, in Germany in the 1950s). The Spanish Constitution opts not to proscribe goals or ideologies, but only to penalize certain unlawful conducts (such as support for a terrorist organization). And it is logical that this should be the case, as all of its provisions can be amended through the established procedures: Article 168 specifically provides for the Constitution’s total amendment; there are no express “intangibility” clauses. Should any point of the Constitution need to be amended, there is thus nothing preventing any change, no matter how radical, from being peacefully advocated. Any political project has a place in the Spanish constitutional framework, provided it does not resort to violent methods.⁴

Nor is that pluralist vision limited to this strictly political aspect, to the recognition, for example, of the prominent role of political parties as fundamental instruments for participation (Article 6). In addition to generally enshrining freedom of association as a fundamental right (Article 22), the Spanish Constitution includes references to cultural and linguistic (Article 3), educational (Article 27) or religious (Article 16) pluralism, as well as to the role played by trade unions and employer associations (Article 7).

3 Spain: a Politically Decentralized State

Spain has been a nation for five centuries, but it has a serious (and as yet unresolved) structural problem, namely, its territorial organization. This unfinished piece of business has deep-rooted causes, some older, such as Spain’s weak nationalization in the nineteenth century, and others more recent, such as the electoral success of the peripheral nationalist parties. In recent decades, the country has witnessed a rebirth of national consciousness in regions or comunidades autónomas [literally, autonomous or self-governing communities, the first-level administrative divisions into which Spain is divided] with a distinct personality, a resurgence of nationalist tensions. The strength of the nationalisms calling for their own state, in conjunction with various other arguments, has prompted a profound revision of the traditional models of territorial organization of power through different decentralization formulas.

In the case of Spain, the recognition of high levels of self-government for the autonomous communities is a response to a series of claims and historical conflicts intended to preserve and strengthen the unity of a constituently diverse and plural nation and to neutralize centrifugal tendencies.

The Estado de las Autonomías (State of Autonomous Communities) is a compromise formula, halfway between a unitary and a federal state, that hinges on the affirmation of a “nation”, the Spanish one, as the holder of sovereignty, and a series of “nationalities and regions” with a recognized “right to autonomy”. The aim is to make the political autonomy of the autonomous communities compatible with the principle of the unity of the state expressed in a single Constitution, which, in turn, is the expression of the constituent power vested in the Spanish people.

It is a unique model whose future development is wide open (a process was launched the final outcome of which is unknown).⁵

The recognized capacity for self-government of the autonomous communities, as substate entities, is not primary and sovereign, but secondary and limited, as it exists insofar as it is recognized by the Constitution, the foundation for and limit of all public powers in Spain. It is a power exercised in this framework and subject to limits such as those set forth in Article 149.1 CE, which lists the exclusive competences of the state, or the principles of solidarity (Articles 2, 138 or 158.2 CE), the basic equality of all Spaniards in the exercise of rights and fulfilment of duties (Article 149.1.i CE), freedom of movement and settlement of persons and goods (Article 138.2 CE) or market unity.

The essence of that self-government lies in the granting to these territorial entities of legislative power, of the ability to issue norms with the force of law that become part of the state legal system. The autonomous communities are not limited to assuming administrative management powers or exercising regulatory power. It is a qualitatively distinct form of self-government from that of municipalities and provinces due to its “political nature” (Constitutional Court Judgment [hereinafter, STC] 25/1981). For one thing, it includes recognition of the autonomous communities’ capacity to endow themselves with their own institutions, their own parliament and government.

Unlike the member states of a federal state, which adopt their own constitutions through their own bodies, without the intervention of the central institutions, in Spain, the autonomous communities do not have their own constitutions as an expression of a sovereign power. At the top of each regional sub-system is a statute of autonomy, which is a state law passed by the Cortes Generales (the central Spanish Parliament, which represents the whole nation). Each statute of autonomy has the status of an organic law with the key particularity that the representatives of the respective autonomous community (whether in the process of being formed or already constituted) participate in its drafting and amendment. Between 1979 and 1983, and pursuant to the dispositive principle, the representatives of those territories that wished to become autonomous communities participated in the gestation and approval of such statutes, in accordance with the various procedures for accessing autonomy provided for in the Constitution.

It is worth noting that the Spanish Constitution does not imperatively establish the regional map: it neither lists the autonomous communities, nor directly confers powers on them. It is the statute that creates the corresponding autonomous community. In accordance with this constitutive function, Article 147.2 CE establishes the minimum necessary content thereof: (a) the name of the community; (b) its territorial boundaries; (c) the name, organization and seat of its own autonomous institutions; and (d) the powers assumed within the framework established by the Constitution.

As for the amendment of these statutes, Article 147.3 CE provides that it shall be done in accordance with the “procedure established therein”. The statutes of autonomy thus benefit from a special rigidity or stability. This rigidity, in turn, is a permanent guarantee of the autonomy, as the central powers cannot amend a statute of their own accord, unilaterally, without the consent of the community’s representative body. All of the statutes provide that the initiative for reform lies with the corresponding regional parliament. But that proposal must be approved by the Spanish Parliament by means of an organic law (with the intervention in this stage, too, of the representatives of the autonomous community in question). And in some autonomous communities, the reform has to be ratified by referendum.

The statutes of autonomy are thus hierarchically subordinate to the Spanish Constitution and subject to the control of constitutionality, as expressly provided for under Article 27.2 of the Organic Law on the Constitutional Court [or LOTC from the Spanish].⁶ From a formal point of view, there are clear differences with a federal model: the legal basis of the powers is different and the self-government and participation of the member states of a federation in the adoption of decisions by federal bodies is better guaranteed. Federated states have their own representation in a house of the federal parliament and are involved in the amendment of the federal constitution. That participation is much weaker in the case of Spain. The Senate, as the chamber for territorial representation, is still broken, and the autonomous communities do not participate as such in the Constitution’s reform.

However, in practice, these differences are blurred, as what matters is their decision-making capacity. And in this regard, in many areas, the 17 Spanish autonomous communities exercise powers of more political importance and greater significance than the German Länder or US states. For this reason, the dilemma is relative. The differences are, rather, symbolic (albeit not, therefore, negligible) and can be explained by the circumstances of the constituent process (for many sectors at that time, the federal model was associated with the division or fracture of the state).

Certainly, the figures bear witness to the enormous magnitude of an unprecedented transfer of human and material resources, which, in short order, has positioned Spain high in the ranking of the most decentralized states in the world. Proof of the scale of this dizzying transformation can be found in the sheer breadth of powers assumed (healthcare, education, social work, urban planning and housing, agriculture, the environment, transport, etc.),⁷ the share of public spending that the autonomous communities administer, or the number of civil servants transferred. If governing is, first and foremost, deciding what to spend on, Spain is indisputably one of the countries with the most decentralized public spending. The autonomous communities are the main executors of public investment (ahead of both the central Spanish and local governments).

The competences of each autonomous community are as listed in its respective statute of autonomy, as the Constitution establishes only the competences of the state (Article 149 CE). The Spanish constitutional design is asymmetrical from the start: Article 2 CE refers to “nationalities and regions”; the document regulates two procedures for accessing autonomy; and it recognizes the historical rights of those territories with “fueros” (local charters) (First Additional Provision CE). This is because the desire for self-government and awareness of a distinct identity were likewise asymmetrical at the founding moment. But that pattern was broken with the 1980 referendum in Andalusia. Ever since, the trend has been towards the equalization of powers between slow-track and fast-track (Catalonia, the Basque Country, Galicia) autonomous communities. This equalization bothers the Basque and Catalan nationalists, who feel that their singularity has not been respected, that the putting of other autonomous communities on the same level has blurred that specificity, diluted the relationship that they want to be bilateral. They do not want to be simply another autonomous community, another seat at multilateral forums. The problem is how to recognize singularities without generating comparative grievances, because here no one wants to be “less than”, and the driving force behind the construction of the State of Autonomous Communities has been emulation. The question is whether there is room to continue deepening the self-government of some autonomous communities, to broaden their range of powers, without jeopardizing the proper functioning of the system as a whole. And without this special regime constituting a privilege. And the truth is that there is very little margin, because in this regard the ceiling set by the Spanish Constitution has been reached. The competences still in the hands of the central institutions are the bare minimum required to guarantee the cohesion and unity of action of the state.

As for the institutional architecture of the autonomous communities, all of the statutes are cut from the same cloth, namely, that of a parliamentary regime with a legislative assembly elected by universal suffrage, according to a system of proportional representation, with the power to pass laws in those areas for which legislative competence has been devolved to the autonomous community and to submit bills or proposals for constitutional reform to the Spanish Parliament; and a government council, politically accountable to the legislative assembly, headed by a president, appointed by the assembly, which grants him or her its confidence. Unlike at the national level, it is not a dual executive: the president of the autonomous community with representative functions is also the president of the government council (they are inseparable positions). Upon taking office, the president can freely appoint and remove ministers and oversees and coordinates the implementation of his or her government agenda. However, the president is also the autonomous community’s top dignitary. He or she assumes this supreme representation, which has a symbolic and ceremonial content, consisting of the institutional personification of the autonomous community ad extra, in its relations with other institutions. Finally, the president also represents the state (not the central government) in the autonomous community. Another piece, which rounds out the institutional framework, is the High Court of Justice, which culminates the judicial organization in the territory of each autonomous community but is not a body of the autonomous community itself, but rather part of the state judiciary, which is single.

The State of Autonomous Communities has been consolidated; it is an irreversible reality. It has placed regions that had been abandoned for centuries on the map and helped to mitigate the differences between poor and wealthy regions, and a majority of citizens view this metamorphosis positively, as it narrows the gap between the decision-makers and those whom those decisions affect. On the whole, the result has been clearly positive, with more hits than misses. But the current model has begun to be questioned by some nationalist political forces, who do not feel comfortable in the constitutional framework and advocate for independence or, failing that, a new confederal agreement, which presupposes the recognition of the right to self-determination of the nations that make up the Spanish state or “right to decide”, a euphemism with which they try to disguise the right to self-determination, which would be exercised through the holding of a legal referendum.⁸ They have already moved on to the next level.⁹

If we are to be honest, we must acknowledge the relative failure of the solution adopted in 1978 to facilitate the integration of the peripheral nationalisms into a common project. The unity of Spain is in greater danger today than in 1978. For some, the responsibility for this disaffection is shared, but I do not think that it can be attributed to a lack of generosity in the Spanish Constitution. It was a good idea, the best formula available in that context to organize Spain’s territorial plurality, although its performance as a tool for integration has fallen short of the expectations created at the time.

4 The Secessionist Challenge

For many years, the nationalists demanded full compliance with the statutes of autonomy and, in the case of CiU, the reform of the financing system for the autonomous communities. In the first decade of the twenty-first century, however, they changed their strategy. Considering the regional model exhausted, they chose to double down, demanding the effective exercise of the right to self-determination. The supposed disappointment is nothing more than an excuse to justify the launch of a new phase, with an openly pro-sovereignty proposal, which leads to a dead end, to the rupture of the framework for co-existence, with a not inconsiderable risk of civil confrontation.¹⁰

4.1 The Ibarretxe Plan as Precedent

An initial attempt in this regard was the “Ibarretxe Plan” (Proposal to reform the Political Statute of the Autonomous Community of the Basque Country), sponsored by the lehendakari (president of the Basque government) J.J. Ibarretxe. Although formally a proposal to reform the Basque Statute of Autonomy, in reality, it entailed a covert constitutional reform, as it recognized the “right to decide” of the Basque people and designed a special confederal relationship with Spain: shared sovereignty, bilaterality and free association.¹¹ It was approved by the Basque Parliament in December 2004 and rejected by the lower house of the Spanish Parliament in the consideration stage in February 2005.¹² This initiative had no place within the Spanish Constitution, for both substantive and formal reasons, as the established procedures were not followed. Obviously, the right to decide unilaterally on whether or not to be a part of Spain clashes with the terms of Article 1.2 CE, which, as seen, vests sovereignty in the Spanish people as a whole.¹³

A very tenuous confederal connection was therefore maintained (confederation is a rudimentary form of organization that has historically served as a way station), not out of conviction or as a generous concession for the sake of consensus, but to avoid ridicule. How many countries would recognize an independent Basque Country resulting from a unilateral declaration to which Spain has granted no validity? The vague reference to the status of free association is less frightening, even if it were gradually to lead to real or de facto independence. Furthermore, and most importantly, formal independence would mean leaving the EU.

In any case, this formula of shared sovereignty and free association is quite problematic, because it is based on the premise that there exists a Basque People with a capital “p”, dating back thousands of years, with its own identity, settled across seven territories, currently organized in three different legal-political spheres located in two countries. The citizens of these territories would have the right to be consulted to decide their future. The proposal obsessively turns on the collective destiny of the Basque People. Yet it is not at all clear what “the Basque people” means for these purposes.

This aspiration is based, first, on an interpretation of the “foral” tradition in terms of original sovereignty and on an attempt to revive, at this late date in history, the archaic formula of the pact with the Crown, which is linked to the absolutist ecosystem (Herrero de Miñón 1998). As the final paragraph of the First Additional Provision CE clearly shows (the updating of the “fuero” system “shall be carried out, when appropriate, within the framework of the Constitution and of the Statutes of Autonomy”), historical rights cannot be invoked in disregard of the Constitution, as an escape route, because there are no original powers outside the constitutional framework. There are no powers other than those regulated in the constitutional text and always in the terms established therein. The Constitution cannot allow self-rupture. Thus, the counterweight to the constitutional reception of these rights is subjection to the limits set by the Constitution. The Constitutional Court had already found, in Judgment 76/1988, that “the Constitution is not the result of a pact between historical territorial authorities who conserve rights that predate and outrank the Constitution”.

Second, it claims the right of the Basque people to decide their own future in accordance with the right to self-determination recognized by international law. As is well known, as a general rule, the principle that actually governs this sector of the legal system is that of the territorial integrity of states and the inviolability of borders. The right to self-determination is recognized only exceptionally in the cases of peoples subject to decolonization or oppressed under foreign occupation. A condition that clearly does not exist in the case of the Basque Country or Catalonia. Basques and Catalans have never been subject to a colonial regime, they express their will and vote freely, and they are represented in the Spanish Parliament under the same conditions as all other Spaniards.

The proposal was unconstitutional for two other reasons: the self-conferral of new powers that clearly exceeded the constitutional framework¹⁴ and the procedure laid out for its approval, which did not comply with the provisions of the Spanish legal system.¹⁵

In the following legislative term, the Basque Parliament passed Law 9/2008, of 27 June, “convening and regulating a popular consultation for the purpose of ascertaining public opinion in the Autonomous Community of the Basque Country on commencing negotiations to achieve peace and political normalization”.¹⁶ This law authorized the lehendakari to put two questions to the citizens of the Basque Country in a non-binding referendum and even set the date thereof: 25 October 2008.¹⁷

The law’s explanatory memorandum states that it is neither a referendum nor legally binding and, therefore, the Organic Law on Different Types of Referendums [hereinafter, LOMR]¹⁸ does not apply to it, nor does it require the prior authorization of the state.¹⁹ STC 103/2008 upheld the action of unconstitutionality filed by the president of the Spanish government against the law, finding that this non-binding “popular consultation” was, in reality, a referendum and, as such, required the authorization of the state. For the Court, referendums are a type of “popular consultation” intended not to gauge public opinion on a given matter of public interest, but to verify the will of the electorate with all the guarantees of an electoral process. And in this case, the citizens of the Basque Country entitled to vote, that is, the electorate of that autonomous community, were being called to the polls for a consultation on a matter of a political nature for the purpose of determining their will.

But the Court went one step further, asking whether the content of the question asked was materially compatible with the Constitution. The answer was a categorical no: “The question which it was wished to put to […] consultation […] affects (Art. 2 CE) the basis of the current constitutional order (insofar as it assumes reconsideration of the identity and unity of the sovereign subject […]) and therefore it may only be subject to popular consultation via a constitutional review referendum […]”, the mechanism provided for in the Constitution for such purposes. The door to the possibility of “secessionist” referendums, with or without state authorization, was thus closed.²⁰

4.2 The Pro-independence procés in Catalonia

The launch of the pro-independence process (or procés as it is often called, from the Catalan) was the result of several factors that came together beginning in 2010: the acceleration of the process of construction of a national identity driven by the regional institutions, the erosion of mutual trust between political leaders, widespread malaise due to alleged fiscal abuse or spoliation (España nos roba, that is “Spain robs us”),²¹ the austerity policies implemented to cope with the 2008 economic recession, the Constitutional Court’s annulment (STC 31/2010) of some provisions of the autonomous community’s 2006 Statute of Autonomy,²² which was perceived as a grievance,²³ the coming to power of the Partido Popular [People’s Party, PP] in 2011, etc. Prior to 2010, less than 20% of the population was in favour of secession. The political map had been dominated until then by two large moderate parties: CiU, a centre-right nationalist coalition that had governed the Generalitat [the system of institutions through which Catalan self-government is organized] since 1980, and the Partit Socialista de Catalunya [Socialist Party of Catalonia, PSC], a centre-left Catalanist party that had been the leading force in the general elections.

The timeline of the procés begins with the mass demonstration held on 11 September 2012 on the occasion of Catalonia’s National Day. It visualized the commitment to achieving an independent state, with support for secession at an all-time high (48.5%). In January 2013, the Catalan Parliament approved, through Resolution 5/X, a “Declaration of sovereignty and right to decide of the people of Catalonia”.²⁴ In STC 42/2014, the Constitutional Court found the section proclaiming the Catalan people a sovereign political and legal subject to be null and void. No fraction of the Spanish people can attribute sovereignty to itself.²⁵

In October 2014, following the refusal of the lower house of the Spanish Parliament to authorize the holding of an independence referendum, the Generalitat promoted a non-binding vote on the political future of Catalonia under Catalan Law 10/2014, of 26 September, on popular non-referendum consultations and other forms of citizen participation.²⁶ As both this law and the decree calling the referendum were suspended by the Constitutional Court, having been challenged by the government of Spain under Article 161.2 CE, the “official” consultation was deactivated and, in its place, a “participatory process” was organized for the same scheduled date: 9 November. This non-binding vote was tolerated by the government of M. Rajoy but drew a turnout of just 37% of the electoral roll. Months later, STC 31/2015 would declare Catalan Law 10/2014 unconstitutional. Beginning with the distinction between referendums, which must be regulated through an organic law and require state authorization, and other types of popular non-referendum consultations of a sectoral nature, the Court reached the conclusion, already put forward in STC 103/2008, that what the law is really regulating is a referendum, even if held under a different name, because it is all citizens—not specific groups—who are called upon to decide with all the guarantees of an electoral procedure, and the decision is attributed to the entire political community, that is, to the electoral body as such. What is clearly a referendum cannot be passed off as a non-binding popular consultation for the purpose of side-stepping the requirement of mandatory state authorization (Art. 149.1.32 CE). STC 32/2015, finding Decree 129/2014 convening the popular consultation unconstitutional, was published the same day. According to the Court, the actions of the Catalan government were wholly unconstitutional insofar as they were flawed due to a lack of competence, as the power to call “consultations that deal with questions that affect the constituted order and the very foundation of the constitutional order” does not correspond to autonomous communities.

With the victory of the pro-independence parties in the “plebiscitary” elections of September 2015 (72 of the 135 seats, with 47.8% of the votes) and the appointment of Carles Puigdemont as the new president of the Generalitat in January 2016, the rupture strategy gained momentum.²⁷ In September 2017, the Catalan Parliament passed two laws to call a binding referendum and regulate the “legal transition” to the establishment of the new republic.²⁸ Although both were suspended by the Constitutional Court at the behest of the government of the nation,²⁹ the illegal referendum was held on 1 October 2017, with a turnout of 42% and around 90% of the votes in favour of independence, according to data from the Generalitat.³⁰

One month later, on 27 October, the pro-independence groups in the Catalan Parliament approved a unilateral declaration of independence (supported by 70 of the 135 MPs),³¹ which received zero international recognition.³² That same day, the Spanish government triggered the mechanism provided for under Article 155 CE. It is an extraordinary or exceptional method of state control of the autonomous communities, of direct and coercive intervention, in the model of Article 37 of the German Constitution.³³ This procedure can be used in cases of breach of constitutional or legal obligations by an autonomous community, a flagrant and contumacious breach reflected not so much in specific actions, which can be challenged in court, as in an ostensible line of conduct, a certain attitude of contempt and disloyalty by the highest bodies of the autonomous community, or when the general interest of Spain is seriously affected.³⁴ The aim is to restore normality, that is, restore the constitutional order, seriously altered by the behaviour of an autonomous community, without quashing the system of self-government (which is only temporarily suspended). In any case, it is an extreme measure, justifiable solely in exceptional situations, entailing the suspension of the ordinary self-government regime and the establishment during this parenthesis of a relationship of hierarchical dependence between the central government and the regional authorities.

In short, this article was applied for the first time to deal with the open breach of the constitutional order entailed in Catalonia by the holding of an illegal referendum and subsequent unilateral declaration of independence (the proclamation of the “Catalan Republic”). Upon deeming the president of the Generalitat to have failed to respond to the requisite complaint lodged, the Spanish government agreed, at the Council of Ministers meeting held on 21 October, the measures to be submitted to the Senate for approval.³⁵ The Spanish government’s initiative was processed in the Senate in a committee set up for the purpose, with the autonomous community in question being allowed to submit arguments. Finally, on 27 October 2017, the authorization for the Spanish government to implement the proposed measures was approved by the Senate Plenary.³⁶

That same day, in an extraordinary meeting, the Council of Ministers approved a series of royal decrees containing the specific measures to be implemented under Article 155, including the dismissal of C. Puigdemont as president of the Generalitat (Royal Decree 942/2017) and of the other members of his cabinet, the assumption of the powers of the Catalan ministries by the corresponding Spanish ministries, and the dissolution of the Parliament of Catalonia and calling of regional elections to be held on 21 December 2017 (Royal Decree 946/2017).

In Judgments 89 and 90/2019, the Constitutional Court unanimously upheld this initial application of the extraordinary procedure for the defence of the Spanish Constitution provided for under Article 155 CE.³⁷ It noted the will of the Catalan authorities to consciously and systematically ignore the legal value of the Constitution, break its rules, and question the unity and territorial integrity of the state through a series of acts contrary to the constitutional order annulled by successive rulings of the Constitutional Court.³⁸ The Court considered nearly all the contested measures admissible: the dismissal of the president of the Generalitat; the early dissolution of the Catalan Parliament; the subjection of the regional authorities’ actions to a regime of prior notification or authorization; the full nullity of any acts and provisions that might contravene the agreed measures; the potential replacement of the members of the regional police with members of the state security forces and bodies; etc.³⁹

In the 21 December 2017 elections, the various pro-independence candidacies managed once again jointly to win an absolute majority of seats in the Catalan Parliament. With the swearing in of President Torra in May 2018, the state intervention in the autonomous community was ended. In this “post-traumatic” period, the pro-independence movement maintained its rhetoric of a complete break from Spain and strategy of political confrontation but avoided engaging in conducts of blatant disobedience. Faced with the failure of the insurrectional adventure,⁴⁰ it chose a tactical retreat.

A change in tone was observed when the socialist Pedro Sánchez took office as prime minister of Spain. Although the PSC won the Catalan regional elections of February 2021, the pro-independence forces as a whole won more votes (51%) and seats (74 out of 135). Pere Aragonés, leader of Esquerra Republicana de Catalunya [Republican Left of Catalonia, ERC], was sworn in as president. The commitment of both governments to dialogue and rapprochement seems to have helped bring about a certain thawing or détente.⁴¹

Today, there is no popular mandate for secession (let alone one pursued unilaterally). Any solution necessarily involves recognizing Catalan society’s internal pluralism. But the demand for a referendum remains.⁴² Leaving aside those who invoke the right to self-determination and, thus, defend the legitimacy of unilateral secession,⁴³ there are two possible responses to this demand.

The first is to categorically reject the possibility of a referendum not provided for in the Constitution. If such an essential aspect of the constitutional text is to be amended, the only way to do it is through the procedure regulated under Article 168 thereof, in which it is the Spanish Parliament and Spanish people who play the leading roles. This stance is widely shared in both the literature and political circles. This would be Plan A: an entrenched defence of constitutional legality. Such a referendum is not possible in the current constitutional framework, full stop. However, that framework does offer a pathway, in line with what the Constitutional Court pointed to in STC 42/2014: approval by the regional parliament of an initiative for constitutional reform and the processing thereof by the Spanish Parliament. Would the Spanish MPs and senators be receptive to such an aim, if it were widely shared in Catalonia and enduring over time? Would they accept it in a gesture of political realism and enable the corresponding reform? That is the great unknown of this roadmap, which does not, today, seem politically feasible.

The other option is to accept the possibility of holding a prior referendum of a non-binding consultative nature (Article 92 CE) to gauge the support of voters for a subsequent constitutional reform initiative that would expressly include the recognition of the right to self-determination. It would be a matter of reliably verifying the seriousness and urgency of the aspiration for sovereignty before embarking on the complicated reform process.⁴⁴ In any case, it would be called in application of the democratic principle enshrined in the Spanish Constitution, not pursuant to an alleged right to self-determination, and a potential victory would not lead, as an immediate effect, to unilateral secession but to the opening of negotiations the result of which would have to be embodied in a constitutional reform, endorsed by the Spanish people as a whole, as the sole holder of the constituent power. The country would thus follow the path indicated by the Supreme Court of Canada and the “policy of clarity” adopted by that country’s federal government to defuse the demand for another self-determination referendum in the province of Quebec.⁴⁵ The majority of scholars are wary of this option, which is based on the idea that even secession can be “regularized” or “constitutionalized”, as a way of reconciling respect for constitutional legality and the democratic principle.⁴⁶ This is because, in their view, such a referendum would in reality be binding and calling it would make the consulted electoral body (which would be only the Catalan electorate and not that of Spain as a whole, even though the effects of this decision would affect everyone) sovereign, recognizing in fact its power of self-determination.

Even if the possibility of legally channelling that demand for secession were accepted, it is impossible to ignore the contraindications of using a referendum as a tool to elucidate such a delicate and complex matter as this: a question formulated in reductionist or binary terms (yes or no to independence) generates a deep schism and a high degree of confrontation in society, as witnessed in the Brexit referendum. It would fracture Catalan society even further. A close outcome against independence would not settle the issue, and if the outcome were in favour of independence, even if only by a slight margin, it would open an irreversible, acutely traumatic process that would condemn a very large part of the population to marginalization. A negotiated agreement endorsed by broad majorities is a better solution than a binary choice (yes or no; all or nothing).

5 The Response of the Rule of Law: the Criminal Sentences Imposed on Those Responsible for the Events of October 2017

Spain is a pluralist democracy that has responded to a separatist challenge that jeopardized peaceful coexistence in Catalonia with the tools of the rule of law, respecting the rights and freedoms of Catalan citizens, who are not subject to any type of oppression or political discrimination.⁴⁷

In its legitimate defence of the constitutional order, the state can, in the most serious cases, resort to jus puniendi. In this case, there were more than enough reasons to do so, as the events of October 2017 could circumstantially be considered to meet the definitions of various criminal offences. Thus, in the special proceedings conducted for the alleged crimes committed by the main leaders of the procés, some held in pre-trial detention and others at liberty,⁴⁸ the 2nd Chamber of the Supreme Court, a judicial body made up of independent senior judges,⁴⁹ issued on 14 October 2019, after a four-month trial conducted with all the guarantees (it was live-streamed on television), a judgment of great importance and legal and political significance. The judgment sentenced Oriol Junqueras, vice-president of the Generalitat at the time of the events, to 13 years in prison and absolute disqualification from holding public office, and the Catalan ministers R. Romeva, J. Turull and D. Bassa to 12 years in prison and 12 years of absolute disqualification from holding public office, for the offence of sedition in joint consideration with an interrelated offence of misappropriation of public funds. It further sentenced, as perpetrators of an offence of sedition, Carme Forcadell, president of the Catalan Parliament, to a prison term of 11 years and 6 months and an equal period of absolute disqualification from holding public office; the Catalan ministers J. Forn and J. Rull to terms of 10 years and 6 months in prison and 10 years and 6 months of absolute disqualification from holding public office; and Jordi Sánchez and Jordi Cuixart, the respective leaders of the Assemblea Nacional Catalan [Catalan National Assembly, ANC] and Òmnium Cultural, to terms of 9 years in prison and 9 years of absolute disqualification from holding public office. Three other ministers (S. Vila, M. Borràs and C. Mundó) were convicted of an offence of disobedience and sentenced to a fine and 1 year and 8 months of special disqualification from the exercise of elective public offices.

The Court stressed that freedom of thought protects the claim of a right to self-determination, such that political advocacy by an individual or a group of any political project, even one entailing the total or partial amendment of the constitution, is not a criminal offence. However, “leading citizens in a public and tumultuous uprising, which, moreover, prevents the application of the law and obstructs compliance with court decisions” is. It recalls that protection of Spain’s territorial unity is not an extravagance unique to the Spanish constitutional system. Virtually all European constitutions include provisions to ensure the territorial integrity of the state. This is why no constitution or international treaty recognizes a “right to decide” based on the alteration of the holder of sovereignty, of the original constituent power, and the pre-eminence of an alleged democratic principle over the rules and limits of the rule or law. Because there is no democracy outside the rule of law.⁵⁰

What happened on 1 October, the judgment explains, was not simply a mass demonstration of public protest. It was “a tumultuous uprising, encouraged by the defendants, among many others, so as to use physical force and de facto coercion to turn court decisions of the Constitutional Court and of the High Court of Justice of Catalonia into a ‘dead letter’”. And what took place on 20 September was not a public rally to protest the arrests and searches being carried out in compliance with the decisions issued by an investigating judge in Barcelona. The defendants sought to show that the judges performing their duties in Catalonia had lost the ability to enforce their rulings.

The considerations set out in the judgment regarding the supposed violation of freedom of expression alleged by the defendants strike me as especially pertinent. According to the defence teams, this right was violated due to the “criminalisation of political discourses in order to justify a criminal conviction”. The Court disagrees with that assertion, as none of the acts at issue and declared proved is encompassed within the material content of the right to freedom of expression. The defendants were not punished for “voicing opinions or doctrines contrary to the current constitutional status”, nor “for advocating an overcoming of the existing political framework”. The Spanish system, it continues, “does not identify with those others who make militant democracy one of their hallmarks. […] The same ideas advocated by the defendants have allowed them to take part in legislative elections.” The “target of criminal reproach […] is to have annihilated the constitutional covenant, and to do so through the approval of laws in open and obstinate contempt of the demands of the Constitutional Court. What is sanctioned, in short, is not to give an opinion or advocate a secessionist option, but to define a parallel, constituent legality and to mobilise a multitude of citizens to oppose the execution of the legitimate decisions of the judicial authority, holding a referendum declared illegal by the Constitutional Court and the High Court of Justice of Catalonia”.

The people sanctioned for breaking the law and court orders have had the opportunity to challenge all these measures and sentences before the Constitutional Court, which has upheld them in their entirety, rejecting the appeals filed against them.

First, the Constitutional Court unanimously denied the applications for suspension of the decisions remanding some of the defendants to custody.⁵¹ It subsequently dismissed the appeals for constitutional protection against these rulings, finding that they had respected the principles of legality and proportionality and that the measure adopted was based on a sufficient presumption and pursued a constitutionally legitimate purpose, namely, to prevent the risk of criminal recidivism.⁵²

The Plenary of the Constitutional Court dismissed, also unanimously, the appeals for constitutional protection filed against the orders issued by the investigating judge in the case, who, pursuant to Article 384 of the Criminal Procedure Law, suspended the appellants from the public offices that they had held.⁵³

The appeals for constitutional protection filed by those found guilty in the Judgment of the Supreme Court (Criminal Chamber) of 14 October 2019 of an offence of sedition met with the same fate. In successive judgments handed down by the Plenary,⁵⁴ the Constitutional Court concludes that procedural guarantees were respected in the trial and that the sentences imposed cannot be considered disproportionate.⁵⁵ The severity of the sentence reflects the seriousness of the appellants’ conduct, which was in no way protected by the exercise of the rights they invoked in their claims. The judgments underscore that it was not the externalization of political dissidence or the promotion of mass demonstrations that had been prosecuted, but conduct aimed at impeding the application of laws and neutralizing the decisions adopted by the courts.⁵⁶ And the subsumption of that conduct under the offence of sedition cannot be considered unreasonable.⁵⁷

The nine pro-independence leaders sentenced to prison terms for their involvement in the events at issue in the trial for the procés were subsequently pardoned by the Spanish government by means of separate royal decrees dated 22 June 2021, on the grounds of public utility. They were pardoned for the remainder of their prison sentences, provided they did not commit another serious crime within a period of three to six years. They immediately regained their freedom.

6 The Impact of the Catalan Secessionist Process on the Democratic Quality of Spain

Spain is a mature democracy that holds up perfectly to comparison and performs well in the main rankings measuring countries’ democratic quality. This long-standing positive assessment by the experts is largely based on the level of protection of civil and political rights. These international rankings show no decline in the assessment of Spain’s institutions and system of liberties as a result of the events occurring during the procés, which was a stress test for the country’s political system. The Spanish authorities responded firmly, but within the limits imposed by the rule of law. Or so it can be deduced from the reports of these independent bodies and organizations.

There were no relevant changes in the country’s ranking in the most turbulent years of the procés. The Economist Intelligence Unit’s (EUI’s) Democracy Index 2018, which provides a snapshot of the state of democracy worldwide based on an analysis of 60 indicators,⁵⁸ ranked Spain 19th out of 167 countries. It was second to last of the 20 countries considered full democracies, with a score of just over 8 (8.08), but nevertheless part of the group that topped the ranking, spearheaded, as always, by the Nordic countries. This was the same score it had received in 2017. It scored even higher on civil liberties: 8.82. Although Spain did slip two positions and lose 0.22 points compared to 2016 (8.30) due to the crisis in Catalonia, which takes its toll, it still numbered among the “full democracies”, a ranking it maintained in 2019 (8.18) and 2020 (8.12). In 2021, it lost this status for the first time (7.94),⁵⁹ before recovering it in 2022 (8.07).⁶⁰

Similarly, Freedom House’s annual reports on political rights and civil liberties for 2018 and 2019 include Spain among the free countries, with an overall score of 94/100 (equal to that of the UK and Germany and ahead of France or the US), the same position it held in 2017 and slightly below that for 2016 (95/100). Spain ranks even higher in the The Global State of Democracy (2019) report published by the International Institute for Democracy and Electoral Assistance (International IDEA), headquartered in Stockholm. Specifically, it is 13th out of a total of 150 states in the ranking of the world’s best democracies, with an overall score of 0.77 out of 1 (similar to the UK’s or Germany’s and ahead of Canada, France or Austria).

In recent years, the European Commission’s reports on the rule of law in the European Union⁶¹ have not once censured the measures adopted by the Spanish authorities in defence of the constitutional order seriously threatened by the stubborn rebellion of the secessionist movement’s leaders. They do not hide their concern for the delay in the renewal of the General Council of the Judiciary, certain shortcomings in the fight against corruption (such as the excessive duration of the proceedings), the status of the Public Prosecutor, or the use of spyware and surveillance software such as Pegasus. But they find no structural or systemic problems, nor do they make any reference to the alleged democratic deficit or restriction of freedoms in Catalonia that would support the pro-independence movement’s narrative regarding the repression suffered by Catalan citizens.

Although Amnesty International’s annual reports on the state of human rights in the world—which tend to be more critical—denounce some actions or practices of the Spanish authorities considered contrary to rights recognized in international treaties and conventions,⁶² references to the political conflict in Catalonia are few and far between. The 2017/2018 report does say that the right to freedom of expression and peaceful assembly was disproportionately restricted following the decision to provisionally suspend the Catalan referendum law adopted by the Constitutional Court on 7 September and that the law enforcement officials used excessive force against protestors peacefully resisting the police operation to enforce the court order preventing the holding of the independence referendum (pp. 188–189). The most recent report, for the years 2022/2023, includes a reference to the use of spyware (Pegasus) in the mobile phones of several Catalan pro-independence politicians, journalists and lawyers (p. 192).⁶³

Even in the least complacent reports, the picture painted is far from the scenario of authoritarian drift and oppression described in the pro-independence propaganda. Although some aspects of the functioning of Spain’s political institutions can clearly be improved, I honestly believe that an overall assessment of Spanish democracy more than meets the international standards defining the rule of law and that the country’s system of freedoms merits an overall positive appraisal.