Constitutional disorder: The perils of the Catalonian crisis in the populist zeitgeist

Today's guest post was written by Ana Cannilla-a doctoral researcher at the University of Readings' School of Law.

 

Events in the Catalonian crisis are unfolding at high speed. Over the last years, demands for greater devolved powers and the call for a referendum seeking independence in Catalonia have encountered several legal and political resistances. Remarkably, the Spanish Constitutional Court watered-down the expansive 2010 reform of the Catalan Statute of Autonomy while alternative channels for a legal consultation have remained unattended – as accurately explained by Andrés Boix Palop´s in the Verfassungsblog and by Elisenda Casanas Adam in the UKConstitutionalLawBlog. In the aftermath of the financial crisis, the pro-independence movement won space in the social arena and, in 2015, parties representing this view gained 47.7% of votes in the plebiscitary elections held in Catalonia. On September 2017, the resulting secessionist majority enacted the Self-Determination Referendum Act -which was immediately suspended by the Spanish Constitutional Court- calling for a referendum on the 1st October. As the international media has informed, the referendum had a considerable turnout of 42%, despite being openly illegal and heavily repressed by the Spanish forces.

But what has happened since the 1-O referéndum? Last Tuesday, and in an atmosphere of absolute uncertainty, the President of Catalonia, Carles Puigdemont, addressed the Catalonian parliament and stated the following: “I hereby assume, in presenting the results of the referendum, the people’s mandate that Catalonia becomes an independent state [sic]”. His words were cheerfully celebrated by the crowd gathered around the Parliament but only briefly since, a few seconds later, Puigdemont stated: “I urge this Parliament to suspend the effect of this declaration in order to open a process of dialogue”. Despite the reasonable confusion upon such curious speech, Catalonia was not independent for those 8 seconds. As provided by article 4 of the Referendum Act -and by basic commitment to the rule of law and separation of powers principles- an unilateral declaration of independence was to be solemnly declared by the Catalonian Parliament. Puigdemont’s declaration had thus no pretension of legal validity - it is clear he has no legitimacy to declare an UDI under the current conditions. Still, in a new turn on the ontology of constitutional law and even before the Parliament’s session had finished, the Constitutional Court announced that the declaration would be nullified the next day.

So far, this has not occurred because the Spanish Prime Minister, Mariano Rajoy, resorted on Wednesday to the article 155 of the Spanish Constitution. This article is twofold: Rajoy must urge Catalonia to comply with the Spanish law and if Catalonia ignores the order, the Spanish Senate will consider the implementation of necessary measures to force the territory to comply with it. For the time being, Rajoy has urged Puigdemont to clarify by next Thursday whether any Catalan authority has or has not declared Catalonia’s independence. A few minutes after the request, the leader of the opposition party, Pedro Sánchez, announced an agreement with Rajoy to reform the Spanish Constitution without giving details on its content and extension. On the same day, the radical left party (CUP) that supports Puigdemont in the Catalan Government threatened to abandon Parliament until independence is declared. Upon this context, it is difficult to foresee how the situation will evolve in the coming days - snap elections in Catalonia, called by Puigdemont or forced by Rajoy through article 155 are a bet on rise.

In any event, such a bewildering situation should not distract us from the extremely alarming scenario behind it. As it is known, Spain suffers a severe economic crisis whose effects are still heavily felt in domestic economies, discontent towards our political leaders is towering and trust in our political institutions is in its lowest levels. In the middle of this situation, reactions to the 1-O referendum reminds us that nationalisms (both Spanish and Catalan) can emerge as the most efficient mechanism of social and political articulation that political leaders can use. Unfortunately, the different demonstrations repeated throughout these days have allowed us to verify that the fact that Spain has not openly witnessed the rise of a far-right party does not mean that the extreme-right is inexistent nor ill-equipped. Indeed, Spain is exemplary in its peaceful demonstrations. Rallies and activities regarding the Catalan issue have developed most of the time untroubled, as shown in the conciliatory demonstration spontaneously called through social media under the motto Hablemos? (Shall we talk?). However, some exceptions are clearly disturbing. Several demonstrations organized by pro-referendum groups have suffered violent attacks by ultra groups, as is the extreme case of Valencia. Ultra-catholic and far-right groups followed eagerly the demonstration for the unity of Spain in which members of the government and the opposition participated. The days prior to the referendum, the far-right besieged an act organized by the left party Podemos in Zaragoza and another concentration in Madrid included Nazi salutes and the Francoist hymn. In an questionable decision, the Government decided during Thursday’s celebration of the Spanish National Day (Columbus Day), and for the first time since 1983, that the military march would include a prominent representation of the national police, whose violent intervention in the Catalan referendum was highly polemical. On the same day, Barcelona suffered new riots from ultra groups. None of these images, together with the lack of strong condemnation from the Spanish Government in the rise of these actions, will help to delegitimize violence and radicalism.

The current situation shows the difficult position in which Spanish political parties are today. While it is obvious that the only solution to the Catalan demand will at some point be a legal referendum (80% Catalans want to vote), Rajoy cannot assume the costs of a transfer of unionist voters to its competitor Ciudadanos. In this sense, sceptics are right to lack faith on the new proposal of a constitutional reform put forward by PP and PSOE. Indeed, a constituent process or a substantial reform of the constitution would be a great chance to solve some of the problems that Spain encounters; but it is unfeasible to complete a reform that satisfies Catalan demands for self-determination or for higher levels of self-government under Rajoy´s mandate. The Spanish Constitution allows two kinds of reforms. Under article 167 (“express” reform), several reforms have been completed in agreement between PP and PSOE before. This article allows for partial reforms of the constitution that do not modify its core sections, such as the “indivisibility of the Spanish nation”. Complete reforms or core reforms (article 168) have never occurred before and as I just mentioned, it is doubtful that it will happen in the short term. In a final ironic turn of the Catalan case for self-determination, the former reform would require a majority vote in the Senate (where PP enjoys absolute majority), while the latter would actually require a national referendum!

In the current situation, thus, there are no easy solutions for the Catalan problem. It is yet to see what will be Puigdemont´s next move on Thursday; and how Rajoy will react to it – both are under high pressure from their supporters and electoral competitors. Despite the many troubles already encountered, and despite the terrible threat that an escalating strategy implies in relation to the Spanish far-right movement, it seems that a dialogue process will not follow shortly. This has only just started.