EXPERT COMMENT: Time is running out to avert a larger crisis in Catalonia

In response to the political turmoil in Catalonia after the disputed independence referendum, Dr Javier García Oliva - Senior Lecturer in Law at The University of Manchester – explains that the vote had no democratic mandate, and that time to avert an even greater crisis is running out.

It is in the nature of both traditional and social media to latch on to soundbites and simple narratives, but this rarely aids the development of an informed and nuanced public debate. Nowhere has this been more apparent than in the current crisis in Catalonia, both for participants and observers. Telling an easy story of heroes and villains, oppressors and liberators, or criminals and keepers of the peace, may be appealing, but it is also profoundly damaging.

The regional authorities in Catalonia have been keen to present themselves as victims of a belligerent and intransigent Government in Madrid. Puigdemont, the regional president, with a strong desire to forge ahead with independence, has been very skilful in using rhetoric of democracy and justice, and it must be acknowledged that some of the actions of the central political authorities have played into his hands. 

Moreover, the regrettable lack of meaningful progress towards proper dialogue on the position of Catalonia in Spain, let alone a lawful and properly organised referendum, has been striking, and the current resentment has been festering for a good number of years. In 2010, the Constitutional Court issued a landmark decision which declared a number of articles of the reformed highest law for Catalonia (the estatuto de autonomía) unconstitutional, and this generated an initial outcry in some quarters, which slowly turned to smouldering resentment. 

It is possible to see why the pro-independence movement in Catalonia became ever more disenchanted with the conservative regime in Madrid, led by Mariano Rajoy. Nevertheless, frustration with other political actors cannot excuse the recent decisions of Puigdemont and his allies to effectively set themselves above the law by disregarding judicial rulings. 

When a resolution to hold a referendum on independence was passed in June 2017, this regional legislation was examined by judges and found to be unlawful, and the Constitutional Court suspended a large number of articles of the regional statute passed by the Catalonian Parliament, because the provisions enabling a referendum did not comply with the mechanisms provided for constitutional reform. 

In common with the overwhelming majority of codified Constitutions, the Spanish model contains a clear framework which must be followed if it is to be amended, and at the risk of stating the obvious, these safeguards are in place so that Spanish citizens cannot be deprived of their fundamental rights, benefits and security guaranteed by the established legal order. The Spanish Constitutional Court, as the final arbiter of constitutional legitimacy, has been entrusted with safeguarding the highest Spanish Law, and it has repeatedly declared this course being pursued by Puigdemont and his allies unlawful.

Moreover, the Catalan authorities derive their lawful authority solely from the Constitution, and it cannot be over-emphasised that any action taken outside of it can have no legitimate basis. As a result, the Catalan Government’s decision in pressing ahead, regardless of judicial pronouncements, has been a betrayal of the trust which the Catalan electorate had placed in the ruling party.

Equally importantly, it has been a negation of the duty which all politicians in a liberal democracy must have to the Rule of Law. Once leaders start inventing reasons why they need not obey the fundamental laws in place to safeguard democratic norms, Pandora’s Box is open and cannot be closed. Obeying the law becomes a matter of convenience rather than obligation for those wielding power, a reality which most balanced commentators find chilling.

All things considered, it is taking the name of democracy in vain to describe the recent vote on 1st October as a democratic mandate for anything, and Puigdemont declared independence on the strength of it, before rapidly suspending the declaration. In the days following, the Catalan President gave mixed messages as to the significance and intent of this apparent declaration, to the confusion and exasperation of the authorities in Madrid and other politicians in Catalonia.

Puigdemont’s continuing refusal to clarify his stance did, of course, done nothing to allay fears or bring an end to the tensions, and it is impossible to know whether his reticence is cynically strategic or the result of having horribly miscalculated and back into a corner from which he cannot extricate himself. What is certain, however, is that the stakes are now very high indeed.

The Spanish President gave him until today (16th October) to explain the nature of his ambiguous declaration, and until Thursday (19th October) to unequivocally revoke any purported declaration of independence and return to governing the region in a lawful manner. If Puigdemont fails to do this, Rajoy will continue following the procedure set out in Article 155 of the Spanish Constitution, and has been promised the support of Pedro Sanchez (leader of the left-wing PSOE party) as well as his own governing PP party in doing so.

At the present time, it appears increasingly unlikely that the Article 155 process will be halted. The day of the first deadline is now here and Puigdemont has responded with a request for talks, whilst still failing to provide the requested clarification. Despite the fact that this is slightly less inflammatory than open defiance and affirming the declaration of independence, it is now apparent to all sides that further stalling will be ineffective. Time to avert an even greater crisis is running out, and is now measured in days, rather than weeks.

This provision allows for national authorities to suspend regional Government and rule directly, where regional authorities are acting unlawfully and/or endangering the Spanish national interest. It has been described as a ‘nuclear option’, and although it is only designed to be used in exceptional circumstances, the truth is that nobody could doubt the gravity of the current crisis, or the duty of democratic States to take effective action where politicians are flouting both the Constitution and judicial decisions.

Unfortunately, Puigdemont’s willingness to act illegally has narrowed the options open for achieving this, and ironically, he has made immediate talks on Catalan independence very difficult to justify, as it would appear to be conceding to blackmail.

Nevertheless, there are some sparks of hope in the agreement by Rajoy and Sanchez to discuss the possibility of constitutional reform in the way in which autonomous regions are governed, and a rebalancing of the governance arrangements might ultimately result in a positive outcome. It is hoped that it will be achieved through lawful and democratic channels.

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