One year ago almost to the day (on 27 October 2017) the Catalan parliament agreed to a unilateral secession from Spain. Prior to this on 1 October, the Catalan people had given its agreement via a referendum. The Catalonian referendum- unconstitutional according to the Spanish Constitutional Court– was accompanied by tense discussions, a boycott on the part of the referendum’s opponents, and even the use of violence by the Spanish police force against fellow citizens peacefully casting their vote. The vote within the Catalan parliament was similarly boycotted as a large number of members of parliament left the building as a sign of protest. A few hours later the Spanish government responded to this decision by activating article 155 of the Spanish Constitution. This article allows the central government to place the regions under its direct rule once more. The Catalan government was deposed, parliamentary powers were abolished and new elections were called. Adding to that, several political leaders of the Catalan independence movement were detained and charged with rebellion. One year later many of them are still imprisoned. Former Catalonian president Carles Puigdemont is still in (a chosen) exile for political reasons here in Belgium. In other words, one year later the conflict appears to have been frozen: the Catalonian people remain deeply divided on the matter of independence. The hope of the Spanish government, i.e. that peace would be restored spontaneously, seems illusory. Indeed, the referendum’s anniversary was “celebrated” with large-scale protests that yet again culminated in a violent confrontation with the police. What should be done next, and in what light should constitutionalists consider this case?
The preamble to the Spanish Constitution guarantees a democratic society and confirms the principle of the rule of law. Moreover, it safeguards the unity of Spain as a political entity and does not explicitly provide for a constitutional right of secession. Thus, from a constitutional perspective, the referendum was unconstitutional. Consequently, the Spanish government has the right-even the obligation-to restore the constitutional order in Catalonia. At least this is the language used by the central Spanish government to attempt to justify its harsh response. However, this purely formalist constitutional approach- also endorsed by many commentators-misses the point of this issue: that a significant part of the Catalan population no longer recognizes the legitimacy of the Spanish Constitution. To then refer to that Constitution to de-legitimize Catalan demands of increased autonomy or even independence is strongly reminiscent of a circular argument. Therefore, the real question is not one of legality but one of legitimacy.
The central idea of a constitutional democracy is precisely that a political community decides to settle differences of opinion via generally accepted procedures, and to entrench those procedures in a Constitution. Thus, legality and legitimacy overlap entirely with each other. However, this is not always the case. What happens when a significant part of the populations feels like the Constitution systematically refuses to hear its complaints? And when this part of the population consequently consider it impossible to legally accomplish the changes required to re-establish confidence in the law? In that case legality and legitimacy part ways and civil disobedience might be only option.
The Catalan independence referendum can also be considered from this perspective. The Catalan question has a long history but the current crisis can be traced back to 2010. At that time the Spanish Constitutional Court found an agreement on a series of constitutional amendments reinforcing Catalonia’s autonomous status to be unconstitutional. This was followed by a frosty silence from the Spanish government. Consequently, the unilateral action taken by the Catalan government should be seen in this context. Much can be said against the Catalan referendum. For example, the low voter-turnout and the boycott by its opponents caused the referendum to only represent one side of the discussion. However, the referendum has shown that a significant part of Catalans no longer accept the current situation. A continued insistence on legality in such situation means that the Spanish government is given the right to maintain the status quo permanently, unilaterally and with an iron fist.
This is the situation in which we now find ourselves. Although Madrid- currently presided by socialist Pedro Sanchéz who replaced the conservative Rajoy– has promised to start negotiations on the increasing of Catalonian autonomy, these negotiations currently seem to be at an impasse with no prospects of improvement. Moreover, Madrid refuses to even acknowledge the possibility of secession. While the Spanish Government is supported by the Constitution in this matter, its stubborn attitude renders a sustainable solution impossible.
A Potential Way Out?
Consequently, a flexible and open attitude is crucial in dealing with regional aspirations within an existing constitution. This is possible, as has been demonstrated by the Canadian Supreme Court in its famous ‘Quebec Secession Reference’. The Canadian Constitution also did not provide for the possibility of organising a referendum on independence. Unlike the Spanish Constitutional Court the Canadian Supreme Court choose pragmatism and common sense over the letter of the law. It recognised that the Canadian constitutional order could only continue to exist if an outlet was created for ‘the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada’. Moreover, allowing the referendum creates the possibility to develop a regulatory framework acceptable to both sides. This is something the British government understood when it concluded the Edinburgh Agreement with the Scottish government to allow for a Scottish referendum on independence. In this way both Canada and the United Kingdom have been able to deal with separatist claims within an existing constitutional order, even if this required some adjustments to that order. Moreover (and not inconsequential to the Spanish government), they have succeeded in democratically convincing a majority of remaining part of the larger multinational state rather than having to impose this manu military.
Therefore, dialogue, with the perspective of a binding referendum supported by both parties concerned is the only option to treat separatist claims in a constitutionally justifiable way within a constitutional democracy.
Ronald Van Crombrugge is a PhD-researcher at the Leuven Centre for Public Law. His research focuses on democracy, political participation and referendums.
Christophe Maes has a background in both law and history. His current research concerns the notion of sovereignty in the Belgian Constitution of 1831.
This blogpost was published on the day of Carles Puigdemont’s guest lecture at the Law faculty of KU Leuven.
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