Catalonian Independence: Unbounding a Blood and Belonging Constitutional System

Last November, the Spanish Public Prosecutor’s Office announced that it would ask for  long-term prison sentences for the Catalonian politicians who organised and supported the illegal referendum on the 1st of October 2017. The criminal prosecution of political leaders who acted with a clear electoral mandate is worrying for all those who perceive that the constitutional legitimacy of modern democracy is, by way of comparison to ancient democracy, based on open participation and deliberation. In this post, I would like to reflect on the comparative implications of the Spanish handling of Catalonia’s 2017 referendum for other secessionist and decolonisation movements.

In the 2015 regional elections, Catalans voted for a group of political parties that favoured secession, whose manifesto included a plan to hold a consultative referendum over independence. The election was preceded by a series of failed negotiations between the Spanish government and the Executive Council of Catalonia. The Constitutional Court, with decision n.31 of 2010, refused to consider Catalans as members of the nation, and this did little to reduce the tensions between the central government and Catalonia.

One of the key aspects of the 2015 political manifesto for the secessionist parties was to carry out a referendum, which, if the majority of the voters supported independence, would legitimate the Catalan unilateral declaration of independence. The statute that prepared for the referendum [Ley de Cataluña 4/2017] was reviewed by the Constitutional Court and declared unconstitutional. The Catalonian parliament ignored the Court’s decision and a referendum took place on the 1st of October 2017.

The voting was characterised by a series of violent clashes between voters and security forces. The result favoured independence and on the 27th of October 2017, the Catalan parliament approved the unilateral declaration of independence. The central government, pursuant to section 155 of the 1978 Constitution, established direct rule, suspended the Catalonian parliament and called for a new election. Several political leaders were arrested, and others, including Catalonia’s first minister, fled to Brussels and to Scotland. The new election took place on the 21st of December 2017 and gave, again, the majority of the Catalan parliament to pro-independence parties. One year after the events, nine of the prisoners have been charged with a range of crimes that, if confirmed, might bring sentences of up to twenty-five years in prison for the leaders of the secessionist movement.

The precedent that Spain has set in dealing with Catalonia is, however, worrying. It shows that the Spanish insistence on enforcing a legalistic reading of the Constitution has the effect of imposing an undemocratic bond on the majority of Catalans. The current Catalan  parliament is governed, as the previous government was, by a government dominated by secessionist parties that have a clear mandate. However, there is currently a secessionist majority that is willing to negotiate its future and its democratic mandate has been confirmed in two subsequent elections.

This point is delicate and so I must be precise. The legitimacy of the process holding these former politicians in prison and the illegality of the referendum are very much an internal Spanish affair and are discussed at length in other outlets. The results of the illegal referendum, in which 90% of the voters opted for secession, will not be considered in this post. It is also worth mentioning that  the Spanish constitutional amendment process is highly articulated and the text is perceived as virtually unmodifiable. The long constitution entrenched an extensive list of rights that were systematically ignored by the previous regime. Since 1978, the constitution has been amended only twice, and in both situations the changes were motivated by external factors (for example, the pressure of external investors and the European Union).  A rigid (almost paralysed) constitution is, as in other multinational systems like the Canadian and the American, a severe limitation in a multinational society where minorities are seeking the recognition and accommodation of their identity-based constitutional claims.

However, the  current refusal to accept a democratic reality is highly problematic because, for the past fifty years, Wester  European democracies  have grounded their internal and international legitimacy on the ideas of deliberative democracy and the open-ended negotiations between governments and minority groups. For instance, in 1974, George Thomas, a Welsh Labour Member of Parliament and Secretary of State for Wales explained his party’s intention to have a deliberative assembly in Wales. The proposal would be the harbinger of the current Welsh devolution and Scottish devolution. In Italy the deliberative process commenced earlier. In 1961, the Italian government organized a committee composed of representatives of all the South Tyrol linguistic communities with the aim of designing a series of policies and legislative competences. Almost at the same time, government representatives and the leadership of the German community  started a process of negotiation which resulted in the so-called South Tyrol Package. The Package included 137 policies and competences of which 97 were introduced by the Italian parliament through constitutional law. The remaining points were implemented with ordinary law and with extremely well-articulated administrative regulations.

These rules (e.g. devolution, or the constitutional recognitions of the South Tyrol)  are the manifestation of ideas of deliberative democracy, which has multifarious manifestations. They foster two distinctive processes. Firstly, it has supported many states’ decentralisation policies such as regionalism in Spain, devolution in the UK and fiscal federalism in Italy. Secondly, deliberative democracy and negotiation helped to promote pacific coexistence between European nation states. The process of negotiation also generates a sense of ownership of the constitutional values in all those identity groups that participate in the deliberative process. This is the so-called normative spill-over effect that Habermas and Muller associate with the theory of ‘constitutional patriotism’.

It is reasonably clear that Habermas’s idea of a patriotic constitution for Europe was overoptimistic. However, the Spanish handling of Catalonia’s secessionist movements (e.g. the use of state violence against citizens who could easily be excused for complying with rules they have given their parliament the mandate to enact on their behalf; arresting democratically elected individuals who were normatively bound by the aforementioned electoral mandate; using the threat of long sentences, which has, even if that were tangential, the effect of deterring future open deliberative participation etc.) appears cognitively dissonant with the policies that foster the existing system of governance.

It also internationally singles out Spain, or, at the very least, some of its political parties, as an example of an idiosyncratic nationalist constitutional system that fosters a blood-and-belonging national identity. This is particularly disquieting because there was no indication that France, the archetype of the unitary state for most comparative lawyers, would not have accepted the result of the New Caledonian Referendum held in November 2018 if there had been a victory for independence. The French government would be, it is reasonable to suggest,  far less accommodating if the issue were to arise in relation to  Corsica, Britany or Alsace. It was also relatively clear that there was a similar expectation for the United Kingdom if Scotland had voted for independence in 2014. New Zealand was also happy to accept the results of Tokelau’s 2006 and 2007 referenda. These cases are all different and the central governments had different stances (e.g. New Zealand wanted to decolonise Tokelau) but all these referenda were, by way of comparison to the Catalonian 2017 referendum, the result of open negotiation. In all these instances, leaders of the parties representing central and regional national identities maintained a commitment to the fairness of the process and accepted the results. The central government and the Catalonian Executive were, by way of comparison, never engaged in serious negotiation and the current perception is that central intuitions used and are still using the text of the Constitution as a cudgel to induce the submission of communities during this (and the unavoidable next) time  of crisis.

Posted by Vito Breda. Vito is the author of Constitutional Law and Regionalism (Edward Elgar, 2018), Senior Lecturer in Law at the University of Southern Queensland and Professor in Comparative Law (Tier II, Rome 2016).