Catalonia v the Spanish State – where now?

To no one’s great surprise, the Spanish Constitutional Court, on application from the Spanish government of Mariano Rajoy, has issued an injunction prohibiting the Government of Catalonia from proceeding with its planned consultative referendum vote on independence, du to be held on 9th November.

The Catalan Law “authorizing a non-binding consultation on independence and participation” lays down the question to be posed to the people of Catalonia:

“Do you want Catalonia to become a state? If so, do you want this state to be an independent one?”

In Spanish,

“¿quiere que Cataluña se convierta en un estado? Y, en caso afirmativo, ¿quiere que este estado sea independiente?”

The date and the questions are the result of the agreement reached by the  Catalan President and the leaders of several political parties on 12th December 2013.

Two years ago almost to the day (1st October 2012) I wrote a long article on the Catalan situation, citing the key provisions in the Spanish Constitution and the possible tactics the Catalan government might adopt.  I also forecast that – even if there were ever a vote in favour of independence – the assumed easy path for Catalonia in the European Union would be, well, not so easy.

I reckon what I wrote then is mostly valid today (save perhaps my reflections at the end on the future of the Eurozone)… so here are some extracts:

“It is the word ‘nation’ that lies at the heart of a very modern constitutional fissure between the Spanish state and the people (or “nation”) of Catalonia, a fissure that has deepened and widened as a consequence of economic crisis. We are at the start of a power struggle whose outcome is hard to predict – but which may have an impact not just on people in Spain, but on all Europeans.

The 1978 Spanish Constitution

For note that the Nation features prominently in the current – 1978 – Spanish Constitution, whose first two Articles proclaim:

Article 1

(1) Spain is hereby established as a social and democratic State, subject to the rule of law, which advocates freedom, justice, equality and political pluralism as highest values of its legal system.
(2) National sovereignty belongs to the Spanish people, from whom all state powers emanate.
(3) The political form of the Spanish State is the Parliamentary Monarchy.

Article 2

The Constitution is based on the indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards; it recognizes and guarantees the right to self-government of the nationalities and regions of which it is composed and the solidarity among them all.

Hmm – “indissoluble unity of the Spanish Nation”, and “the common and indivisible homeland”, all in one place… but note also the reference to “the nationalities… of which it is composed”.

The 2006 Catalan Statute

Back to the constitutional politics. Recall again the first two Articles of the current Spanish Constitution, with the indissoluble, indivisible Nation… And look now at the carefully sculpted language of this part of the Preamble to the 2006 Catalan Statute which [the then Socialist Catalan leader] Pasqual Maragall negotiated through, at Catalan and Spanish levels (when the Socialist Zapatero was Prime Minister):

“In reflection of the feelings and the wishes of the citizens of Catalonia, the Parliament of Catalonia has defined Catalonia as a nation by an ample majority. The Spanish Constitution, in its second Article, recognises the national reality of Catalonia as a nationality.
Catalonia, as a nationality, exercises its self-government constituted as an autonomous community in accordance with the Constitution and with this Statute, which is its basic institutional law.”

And Article 1 states:

“Catalonia, as a nationality, exercises its self-government constituted as an autonomous community in accordance with the Constitution and with this Statute, which is its basic institutional law.”

Kicked back by the Court?

Although this text was carefully negotiated and gained political majorities in the Catalan and Spanish Parliaments, the Popular Party (conservatives) decided to take it to the Constitutional Court, which four years later, in 2010, in a highly controversial judgment, upheld most of the Statute, found some Articles (including on language issues) to be unconstitutional, and held that the references in the Preamble to Catalonia as a ‘nation’ to be devoid of any legal effect. Catalan nationalists were infuriated by these judicial incursions, which they saw as a breach of trust on the part of the Spanish state.

Moreover, since the crisis broke, and especially since the Rajoy government was elected, central government has sought to claw back control over the financial autonomy of the autonomous communities; and since Catalonia as richest ‘region’ pays most into the central government’s purse, whilst it has had to face a major deficit, the sense of injustice has grown wider and deeper amongst the Catalonian people.

Spanish government – powers to block referendum

The Deputy Prime Minister has already threatened action in the event that a referendum on (in effect) independence is called, presumably on the ground that under Article 149, the central government has exclusive competence in relation to the “authorization of popular consultations through the holding of referendums”.*

Moreover, Article 155 provides the legal tools which could be used to try to block the Catalan government from holding its referendum:

(1) If a Self-governing Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way that is seriously prejudicial to the general interest of Spain, the Government, after having lodged a complaint with the President of the Self-governing Community and failed to receive satisfaction therefore, may, following approval granted by the overall majority of the Senate, take all measures necessary to compel the Community to meet said obligations, or to protect the above-mentioned general interest.

(2) With a view to implementing the measures provided for in the foregoing paragraph, the Government may issue instructions to all the authorities of the Self-governing Communities.

“All measures necessary” (my emphasis)… I think we heard similar words relied upon for the invasion of Iraq.

Painted into corners

Will it come to a full-blown constitutional crisis? We must first await the results of the early Catalan elections called by Catalan President Mas for November [which led to an alliance of realtiovely pro-independence parties]. We may also imagine that the form of “consultation” of the Catalan people may avoid being a full-blown “referendum”, but rather the offering of an opportunity to the people to express a point of view – thus forcing the central government to argue either that it is in reality a referendum, even if not in form, or that it consists of some other action akin to a referendum, which is prejudicial to the general interests of Spain, in tending towards dissolution of the indissoluble.

But all sides have painted themselves into their respective corners, so it seems hard to see how a diplomatic way through will be found, given the bad blood between the Popular Party and many of the pro-independence supporters in Catalonia. It may be that in reality the Catalans would settle for the Basque solution, in which in effect the Basque region is financially quasi-independent of the central government, apart from modest contributions to a few designated central government functions like defence.

That way, the richest region would no longer subsidise the poorer regions… which itself would seem to some to be a strange contradiction or betrayal of principle, given the emphasis on solidarity in the Catalonia Statute. And for the Spanish government and state itself, the economic and political cost of offering the Basque solution to the Catalans would appear to be too high to willingly cede or bear.

What if…there’s a Declaration of Independence?

But think the unthinkable (for most of us non-Spaniards) of a Declaration of Independence by the nation of Catalonia… followed immediately (as would happen) by a request to join the European Union, for the Catalans are among the strongest supporters of the EU, and would see memberships as a bulwark against the Spanish state seeking revenge and territorial re-integration.

But the EU could not conceivably just accede to such a request for membership… not just because of opposition from the government of Spain, but because it would open the way for other ‘regions’ or wannabe ‘nations’. Flanders would be next, assuming Scotland had not got there first. And would Lombardy be far behind? It is simply too dangerous; the fragmentation of the traditional European states (I avoid calling them nation states) risks ending in civil wars across the continent, and the cumbersome machinery of the European institutions would surely not be able to cope with the constant territorial crises (and leading to very difficult arguments over votes in the EU).

The Euro as is – a force for European divergence

But behind all this is the disintegrative force of the Euro in its present form and structure. While the European Treaties speak of cohesion and convergence, the reality is that the current austerity policies are breeding fragmentation and divergence. Divergence between Member States, and now potential fragmentation within Member States.

I am more and more convinced that here are only two ways of resolving Europe’s current crisis. Either the Euro breaks, and we return to myriad currencies (even if some smaller groupings of States hold together), or we need to build a federal state of Europe rapidly. Starting now, and strictly for those peoples who by exercise of their free democratic will choose to join.

To leave things unresolved as now, will lead to disastrous results for individuals, communities and nations. What appeared solid and indissoluble will not melt into air, but will break down, painfully and sometimes violently.”

Back to now, 2014

Well, in the end the Euro is still there, however dysfunctional, and Scotland got to vote first on its future – as we know, in the end deciding by 55% to 45% to remain part of the UK.  My hunch is that – if allowed the free choice by the Spanish state – the people of Catalonia would vote by a similar, maybe slightly smaller,  margin to remain part of Spain , whilst perhaps availaing themselves of the chance to change their status to that of a “state” within the Spanish State.  But if force were ever used by the Madrid government, to stop a vote taking place, all bets would be off.

The political and constitutional situation is, of course, very different from that applying to Scotland, and since we can be fairly confident that the Constitutional Court will uphold its ban on the “consultation”, even if not called a “referendum”, we need to await the political reaction of the Catalan government.  One option is to proceed with the “consultation” in breach of the Court’s order, which risks an early head-on clash with Spain’s state power…  would the aremy be called in?

The alternative tactic – but it has already been used once – will be for the government to resign, call early elections and use them as a new mandate – but then we would be back (if the present Catalan government is returned) to where we stand today.  And the pro-independence people of Catalonia have already shown a propensity to take to the streets, peacefully, in large numbers…

Another interesting difference from Scotland is the eligible electorate, which includes non-resident Catalans who are registered to vote, as well as non-Catalan residents of Catalonia**.

The currency issue will not be the same as in the Scottish case, since an independent Catalonia would certainly decide to continue to use the Euro, even if it were for a time – conceivably a long time if its entry were vetoed by Spain – outside the European Union.  The argument that the people of Catalonia already hold EU citizenship would however play a far more prominent role in the debate.

To be clear, I am not at all in favour of independence movements in Spain or elsewewhere in Europe – as I indicated in 2012, I see dangers in Europe fragmenting into ever-smaller (and purer?) “nationalities”, which ultimately provide their people with even less autonomy over the economic forces of financial capitalism.  But I fear that the Spanish government will make a serious error if it tries to use the power of the state to prevent the arguments being debated and the voice of the people heard.

Footnotes

* Article 149

1. The State shall have exclusive competence over the following matters:

1. Regulation of basic conditions guaranteeing the equality of all Spaniards in the exercise
of their rights and in the fulfilment of their constitutional duties….
32. Authorization of popular consultations through the holding of referendums.

**People eligible for participation, and registration of participants

The persons called to participate in the Consultation on the political future of Catalonia in 2014 must be over 16 years of age on 9th November and:

a) have political status as Catalans. Those Catalans residing abroad whose last administrative residence was in Catalonia and their descendants who maintain their political status as Catalans must be previously registered in the Registry of Catalans Residing Abroad, as regulated by Decree 71/2014, of 27th May;
b) be nationals of Member States of the European Union, registered in the Population Registry of Catalonia who can prove continuous residence for one year immediately preceding the announcement of the consultation;
c) be nationals of third party countries, registered in the Population Registry of Catalonia who can prove legal residence for a continuous period of three years immediately preceding the announcement of the consultation.