06 Oktober 2017

Homage to Catalonia: How to Lift the Gridlock of Constitutional Crisis in Spain

On 6 October 1934 Lluís Companys proclaimed the Catalan State (Estat Català) within a ‘Spanish Federal Republic’. 83 years later, Catalonia – unbelievable as it may sound – is on the verge of unilaterally declaring its independence, again. At this crucial moment, one has to seriously wonder whether there is any realistic way to de-escalate this grave constitutional crisis. Before, we try to suggest some principles that could potentially lead to the lifting of this gridlock, let us consider some facts.

First, the referendum that took place last Sunday contravenes the Spanish constitution. It also breaches the Catalan Statute of Autonomy (Estatut) that does not entrust the Generalitat and the Catalan legislature with the right to organise such referendum.

This is hardly surprising. National constitutional orders very rarely allow for secession. Notable exceptions to this rule include Article 39 of the Ethiopian constitution that provides ‘every nation, nationality or people in Ethiopia’ with ‘the unrestricted right to self-determination up to secession’; Section 1 of the Northern Ireland Act 1998 which explicitly recognises the right of secession of the region and; Article 4 of the constitution of Liechtenstein that allows individual municipalities to secede from the union and join either Switzerland or Austria.

Having said that, secessionists including the current Catalan elites very rarely claim that their actions are in conformity with the constitution of the given metropolitan State. In fact, the aim of referendums like the one organised last Sunday is precisely to mark the rupture with the old constitutional order and to create a new one.

What is more problematic than the unconstitutionality of the Catalan referendum, however, is the following. The procedures that the Catalan political elites used to pass the two laws on the referendum and on the transition towards the Catalan Republic do not pass democratic muster by any stretch.

Of course, nothing of the aforementioned gives the right to the Spanish authorities to use such police coercion. Even if it is proved that the Catalan police (Mossos d´Esquadra) did not do their job correctly, the State police forces (Policía Nacional and Guardia Civil) should have never exercised such brutal force against people that tried to express their political views by taking part in that procedure. The contrast between the images from Catalonia and the speech of the Spanish Deputy Prime Minister Soraya Sáenz de Santamaría who was reassuring everyone that the response of the government had been proportionate could not be more stark.

So, the question is where can we go from here?

I would argue that although, until now, the intransigence of both sides has led to this gridlock, there is always space for a compromise that could de-escalate the crisis. However, such compromise should be characterised by a number of principles that could help the two sides present the future agreement as a win-win situation.

First, the Catalan political elites should resist the temptation of unilaterally declaring the independence of Catalonia. The level of participation in the referendum does not allow them to make a convincing case for self-determination. Moreover, such self-restraint is the absolute bare minimum requirement for a meaningful dialogue to start.

Second, the Spanish Government and Opposition should commit themselves to the idea of a plural, multinational Spain. Of course, such an idea is not exactly part of the legacy and history of the governing party. In fact, Partido Popular was the party that organised a campaign against the 2006 Estatut and challenged it before the Tribunal Constitucional. Be that as it may, it is only a firm and tangible commitment to the plurality of a multinational Spain that could potentially secure Spanish unity.

Third, the negotiations should entail a new constitutional arrangement for Catalonia that at a minimum ensures the level of autonomy that the 2006 Estatut was providing.

Fourth, this new constitutional arrangement should also provide for a constitutional avenue for Catalan independence. The fact that all reliable polls suggest that the overwhelming majority of Catalans are supporting the organisation of a democratic and legally binding referendum over their constitutional future (dret de decidir) should be seriously taken into account.

Fifth, Catalan independence should de decided through super-majorities. The issue of Catalan secession is divisive even within the Catalan society. A mere 50+1 majority should not be able to decide it.

The final question is who could be the honest and impartial broker that could negotiate such compromise between the parties. Unlike what a number of commentators have suggested, I do not believe that the EU can play this role. In a recent paper, I have showed that its very limited legal toolbox does not allow the EU to undertake an active role in conflict resolution within its borders. The EU can accommodate and provide for pragmatic solutions to everyday problems but it cannot catalyse the resolution of disputes that take place within the borders of its Member States. There is enough evidence to suggest that the Europeanisation of such conflicts do not lead to their settlement. It just adds another arena where the parties simply continue their dispute with other means.

So it is up to the Catalan and Spanish political elites to show the necessary level of maturity to solve this existential crisis. Can they do it? The spectre of Lluís Companys is haunting Catalonia and Spain.

A previous version of this article contained a sentence about Quebec that has been deleted after a reader noted a factual error.


SUGGESTED CITATION  Skoutaris, Nikos: Homage to Catalonia: How to Lift the Gridlock of Constitutional Crisis in Spain, VerfBlog, 2017/10/06, https://verfassungsblog.de/homage-to-catalonia-how-to-lift-the-gridlock-of-constitutional-crisis-in-spain/, DOI: 10.17176/20171007-105759.

3 Comments

  1. Andrew Ellis So 8 Okt 2017 at 14:41 - Reply

    I’m interested in particular in your fifth point; namely that a referendum should require a super-majority. I suspect I, and many other supporters of secessionist parties in Scotland, Catalonia, Quebec and elsewhere would disagree.

    In large scale votes of millions of people, the purported need for the „certainty“ of a super majority is much less persuasive than it is in smaller electorates of say a national assembly of a few hundred members.

    There are relatively few precedents amongst all the independence votes I’ve studied for applying a super majority or other similar thresholds. The Scottish devolution referendum of 1979 required 40% of the electorate to vote, and was (rightly) criticised as a result for denying Scots a devolved assembly which the majority of those who voted had demanded, and for effectively counting all non-voters, including the dead who remained on the electoral registers, as „No“ voters. Few now find such attempts to gerrymander popular votes palatable.

    There may be an argument for requiring a minimum participation threshold rather than requiring a super-majority, but it seems clear that the Catalans handsomely cleared any such reasonable participation hurdle. (Bear in mind the % of total electors who voted for brexit in the UK was around the same as the % of the total Catalan electorate who voted „Si“ to independence. People can’t have it both ways and demand the will of the people be obeyed for brexit, but ignored with respect to Catalan independence.

    Another issue, is that % are proponents of super-majorities going to require? 60, 66, 55? If you chose 60%, is it really democracy to say 59.9% isn’t a mandate? No; for liberal democracies to work, those who leave are obliged to accept the wishes of the majority, not to try and impose arbitrary and probably unworkable limits on what constitutes a „real“ majority. Those who don’t vote (whether as a result of apathy, or as a protest) can hardly complain if their wishes are ignored, unless by their non-participation they render the whole process redundant by ensuring such a low turnout that those opposing the vote can realistically say there is just too little support.It would be a brave person who was prepared to make that argument in relation to the vote on 1st October.

  2. Nikos Sk So 8 Okt 2017 at 14:56 - Reply

    Dear Andrew,
    Thanks for taking the time to comment. You are right. There are not many precedents. Montenegro springs to mind with its 55% threshold. This would be the figure (more or less) I would personally favour.
    I am well aware of the arguments against such practice. They are totally legitimate and I see where they come from. To my mind, however, given the polarisation and the grave significance of referendums on the constitutional future of a certain community, I believe that a simple 50+1 creates even further divisions and cleavages. Case in point: Brexit.

    • Andrew Ellis So 8 Okt 2017 at 15:14 - Reply

      I do see your point Nikos and suspect many pro-independence folk in Catalonia, Scotland or anywhere else would hope for and prefer a „convincing“ vote in favour of independence.

      However, as we saw in the 2014 Scottish referendum a 55/45 split is no guarantee either; even at the time the margin was seen as high enough to (probably?) delay calls for another referendum possibly for a generation or at least several years, whilst not being large enough to kill off the desire for independence amongst those who voted „Yes“.

      Events since in Scotland however have shown how quickly things can change. Both Scotland and Catalonia have seen pro-independence sentiment grow significantly in the past few years; it doesn’t make either inevitable of course (we only have to look at Quebec to see „that ain’t necessarily so“!) but given the response of the Spanish government, it is a shame that the Edinburgh Agreement example wasn’t followed by Madrid. Having sown the wind, let us hope they don’t reap the whirlwind.

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