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by Apr 23, 2012 No Comments

Ferran Requejo

Academic

Scotland is not the only country entering into a debate about its constitutional future

Catalan politics is currently entering a new dynamic. The word ‘independence’ arises increasingly in political and social debates. This is in contrast with the traditional position of this nation, in which a majority has backed a greater degree of recognition and self-government within the Spanish state. Secessionism was a minority position throughout the 20th century, but is now gaining support. According to the most recent survey made by the CEO (Centre d’Estudis d’Opinió, March 2012), 45.4 per cent of the Catalan population would support independence today in a potential referendum, while 24.7 per cent would vote against it and 23.8 per cent would abstain. What has happened?

In February 2004, a commission of the Catalan Parliament resolved to reform the previous Statute of Autonomy (1979) with the aim of achieving four basic objectives: 1) to increase the symbolic and political recognition of Catalonia as a distinct national reality within the Spanish state.

2) to increase the level of self-government of the Catalan institutions and establish a higher degree of protection in the Constitutional Court in order to counter the regular invasions of powers carried out by the central government in the last three decades.

3) to establish a bilateral set of relationships between the Catalan and central governments (avoiding multilateral bargaining processes between the 17 Spanish Autonomous Communities).

4) to improve the deficient and onerous finance system through which Catalonia bears a fiscal deficit following inter-territorial transfers of between 8-10 per cent of GDP, according to several studies.

The Socialist victory (PSOE) in the Spanish elections of March 2004 opened what at the time appeared to be a ‘window of opportunity’ to put to the test premier Zapatero’s promise that he would maintain the text passed by the Catalan Parliament if this proposal had obtained an indisputable majority in this institution.

It seemed possible to include the explicit recognition of the plurinational character of the state and to proceed to an effective and stable political accommodation of Catalonia with regard to its self-government and financing.

According to data from a study carried out by the Opina Institute (autumn 2005), 71.4 per cent of Catalans believed that Catalonia needed a new statute; 60.4 per cent thought that Catalonia should be referred to as a nation within the Spanish state; 79.7 per cent demanded that the Catalan language receive the same treatment as the Spanish language; and 83.3 per cent considered that Catalonia displayed “a relatively high degree or a very high degree of solidarity” with the rest of Spain. A large majority, 75.8 per cent, believed that the new statute would result in an improvement in the standard of living of Catalans (16.6 per cent were of the opposite opinion).

Moreover, according to data from the Centre of Sociological Research (CIS, 2005), 64.7 per cent thought that it was quite or very necessary to reform the statute; 75.2 per cent supported the right and duty to know the Catalan language; and 79.7 per cent to know it as well as Spanish. Regarding the state model, 4.5 per cent preferred a state without autonomies, 23.5 per cent with autonomies “like now”, 48 per cent preferred a state in which the autonomies had a greater level of self-government, while 20.7 per cent were in favour of a state that recognised the possibility of independence.

However, at the end of the parliamentary process in Spain, national recognition, that is, the formal definition of Catalonia as a nation was removed from the articles of the proposal of the new statute. In the preamble, which has no strict juridical value, it is stated that the Catalan Parliament “has defined Catalonia as a nation by a wide majority”, but goes on to say ambiguously that the constitution recognises the national reality of Catalonia as a “nationality”. Additionally, the final fiscal agreement (2009) did not bring Catalonia closer to the “asymmetrical” regime of Navarre and the Basque Country. Despite some changes, it would therefore appear that the new statute failed to represent any sort of progress towards a proper system of fiscal federalism. Bilateralism, moreover, was not accepted.

In short, of the four previously mentioned basic objectives which motivated the reform of the statute, none were really achieved. The powers of self-government are expressed in far more detail than in the 1979 Statute, although it does not appear that the practical effects of it will result in a modification of the ambiguous constitutional logic which has given the central government hegemony with regard to the practical division of powers during the previous three decades.

The Popular Party (at that time in opposition) appealed to the Constitutional Court against parts of the Catalan Statute after its approval in referendum by the Catalan electorate (2006).

This resulted in the complete politicisation of the magistrates, including the exclusion of one of them. Moreover, four of the magistrates finished their legal period in office in 2008, but continued in their positions. All these factors have delegitimised a judicial institution which had enjoyed considerable prestige since the 1980s and which has seen this prestige wiped out at a stroke. The court finally ruled on the Catalan Statute in July 2010 (four years after the passing of this law!).

Basically, the court established two kinds of decisions: 1) it declared “unconstitutional” 14 articles of the Statute of Catalonia, and 2) it established an “interpretation” of 27 articles and other additional provisions. In the first group, we find the following subjects: 1) Nation: references to the Catalan nation included in the preamble are considered “without legal effect”.

2) Language: the word “preferred” in the use of Catalan in public administration and media was deleted.

3) Institutions affected: basically, the Council for Statutory Guarantees, the Catalan “Ombudsman” and the Council of Justice of Catalonia – a new body that aimed to devolve some features of the unitarian model of Spanish courts which do not follow the autonomous model, but maintain essentially the profile of a centralised unitary state.

4) Laws and rules of jurisdiction: the court cancels the statutory regulation of the “basic laws” (framework laws), which was previously established in order to limit the frequent interference by the central power during the previous three decades.

5) Financing: the court declares two provisions contrary to the constitution that affect levelling mechanisms between autonomous communities and local government finances.

The group of 27 articles “interpreted” by the court includes different issues, such as, the concept of “nation”, norms regarding the Catalan language, courts, specific laws -including referendums and funding, etc.

In practical terms, this ruling represents a step backwards in the deepening of the self-government and national recognition of Catalonia. It represents a political turning point in the relations between Catalonia and Spain.

The legal reasoning of the present judgment is more rhetorical than was usual in other rulings of the Constitutional Court. It includes a Spanish nationalist rhetoric. In fact, there is a clear desire to limit the recognition and self-government of some provisions (language, symbols) even more than in the Statute of 1979. It also blocks the path to a deepening of self-government and avoids a specific reform of the finance system. This step backwards has reinforced the growth of secessionism in Catalonia, while also reinforcing the more intransigent positions in Spanish institutions and parties. The chances of a potential intermediate federalising agreement are fading.

The negative experiences of recent years have led many Catalans to draw the conclusion that the country’s future lies in its separation from a state to which it was forcibly joined three centuries ago (1714). It is a conclusion that is the result of the hostility shown by the Spanish political and legal institutions. Moreover, it is likely that we will see another secessionist wave when the “fiscal agreement” proposed by the current Catalan government in this legislative period (2010-14) is once again rejected.

Broadly speaking, we can distinguish two stages in Catalonia’s progress towards its potential political emancipation: the secessionist stage and the independence stage.

1) Secessionism. This is the current stage. The basic objective is to achieve a solid social majority in favour of independence. There are many reasons for this (economic, social, international, linguistic, cultural, etc). Three clear characteristics of an independent Catalonia appear on the horizon: a) it would be an economically rich country, with welfare levels similar to the Scandinavian countries or Canada; b) it would constitute one of the most advanced democratic states, promoting international solidarity and the rights of minorities; c) it would be an internationally recognised nation.

At present, Catalan civil society, which is leading this process, is composed of three elements. On the one hand, there is the National Assembly of Catalonia (ANC), which was officially founded in March 2012. This is a grassroots organisation without ties to any party. On the other hand, the Association of Municipalities for Independence (AMI), which in mid- March 2012 included one third of the local authorities in the country, although this number is growing every week. Barcelona will probably join this organisation at the end of the process. The third element consists of a set of entities of different types – business, cultural, professional, linguistic, sporting, etc, that also back independence.

2) Independence. This stage is more complex and involves more actors. It includes two decisive dimensions: the institutional and the international. Once Catalan society has shown its strength, the leadership and the political strategies in this second stage would probably be the responsibility of the political institutions, especially the Catalan Government and the Parliament. At this stage, there must be a clear institutional leadership, which can be clearly identified from Washington or Beijing. In parallel, strategies should be designed to establish partnerships with other organisations and international institutions (Council of Europe, OSCE, UN, EU, etc.). At this stage, mediators and foreign observers will be necessary, especially as the central power will have the issue of independence for Catalonia much more explicitly on the agenda and will react with all its political, legal, media and international powers to prevent it.

I think that the key to the success of the secessionist perspective is not to confuse the priorities, strategies and leadership of these two stages, despite the overlaps that may occur.

Independence is the most ambitious goal that a stateless nation can aspire to. Unlike the constitutional provisions that are present in Scotland, Quebec and Flanders, Catalonia has to fight against the clear and explicit hostility of the Spanish constitutional framework and the Jacobin and nationally non-pluralist political culture of the two main Spanish political parties (PP and PSOE). Many things are changing now in Catalonia, but the future remains uncertain.

However, as Raymond Aron lucidly said some decades ago: “Men know that eventually international law must adapt to reality. A territorial status invariably ends up being legalized, provided it lasts.” Ferran Requejo, Professor of Political Science, Universitat Pompeu Fabra, Barcelona

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