Tuesday, 5 February 2013

The Catalan Coup


Anyone relying on the anglo-media may be surprised to learn that the devolved Catalan Parliament thumbed its nose at the Spanish constitution last month (on January 23rd) by passing a resolution declaring that the people of Catalonia are sovereign:
"The people of Catalonia have, by reason of democratic legitimacy, the character of a sovereign political and legal entity."


The Declaration of Sovereignty of the Catalan People (85 votes in favour, 41 against and 2 abstentions), is the first stage in the Catalan Government's National Transition plan, which is claimed to be the logical next step for the Generalitat in the process of Democratic Transition which created the existing system of asymmetric devolution in the Spanish state.
This evolution of devolution is to lead to a referendum on the constitutional future of Catalonia in 2014 (the year of the proposed Scottish independence referendum), although the Spanish government maintains that the basic law of the Spanish constitution, which it has no discernible intention of amending, precludes all possibility of either secession or referendums deemed to be secessionist.
The declaration of sovereignty was jointly proposed and endorsed by the centre-right pro-independence Catalan governing party, Convergence and Union (CiU), and the main opposition party, the pro-independence Republican Left of Catalonia (ERC), plus the federalist Catalan Greens (ICV) and an element of the quaintly disunited anti-capitalist Popular Unity Party (CUP).
Although the Spanish government initially dismissed the declaration as a juridically inconsequential exercise in political rhetoric, it is worth noting that the Barcelona Advocates Association has expressed the view that it is on the contrary highly significant and that what it means is that, if the Spanish state prevents the Catalan Government from holding an agreed binding referendum on Catalan independence and also obstructs the non-binding purely consultative consulta which the Generalitat would then endeavour to organize on the sole authority of the Catalan Parliament, that legislature would be justified in proceeding to pass a resolution which would constitute a UDI (unilateral declaration of independence), which would be represented as legitimate on the basis of the said declaration of Catalan sovereignty and the principle of the inalienable right of national self-determination on which it is said to be based. Catalan nationalists presume to consider that the will of the people, and specifically the will of their people, is a higher authority than the statutory authority of the Spanish state:
"If the Spanish government prevented a self-determination vote or did not recognize its result, the Advocates Association would recommend a unilateral declaration of independence proclaimed by the Catalan Parliament. If that were to happen, they say 'a declaration of independence would make Catalonia a new state with immediate effect', because Catalonia 'has the minimum characteristics of a state, which are a permanent population, a well-defined territory and sovereignty'." (Catalan News Agency, January 23rd 2013)
This month an organization to be known as the Catalan Council for National Transition will be launched by the Generalitat. Its function will be to take all necessary steps in preparation for an independence referendum, which is to take place at about the same time as the Scottish one. The work of this body is to culminate in the creation of a Catalan tax agency so that a swift transition to totally autonomous tax collection can be effected if a UDI is judged to be required.
While we await a seemingly inevitable clash between Madrid and Barcelona, the Catalan Government is getting ready to initiate a charm offensive in Europe. First Minister Artur Mas (President of the Generalitat) is to visit Berlin (which the Spanish prime minister has just been visiting) and also Brussels in order to prepare the ground for what is coming. On the Castilian side various strategies are under consideration, including (i) blocking specific initiatives of the Generalitat by referring them to the Spanish Constitutional Court, (ii) suspending Catalan devolution and even (iii) sending in the armed forces.
What might be the implications of this sinister Iberian scenario for Scotland, where, in stark contrast, a majority pro-independence administration has reached agreement with the UK state on an independence referendum, the result of which is to be binding and followed by a negotiated settlement if independence is approved by a majority of votes?
"There is no doubt that events in Scotland are influencing those in Catalonia. If both referendums are to be held in 2014, the question then becomes whether events in Catalonia might influence those in Scotland. One way in which Catalonia could influence Scotland would be by increasing the level of confrontation between the 'yes' and 'no' campaigns, although this seems unlikely. A second possibility would be by bringing the possible third option/second question back into the debate, although the current process seems a bit too far ahead for that. Where the influence of developments in Catalonia might be felt more in Scotland is in attempts to negotiate with the European institutions, as both Catalan and Spanish governments are putting them under a lot of pressure. A possible breakaway-independent Catalonia is much more problematic for the EU than a possible negotiated-independent Scotland, but in order to avoid having to face the former they might make the procedures for accession of newly-independent regions very complicated for all possible candidates." (Elisenda Casanas-Adam, Another Independence Referendum in 2014? January 31st 2013)
A Catalan coup d'état (golpe de Estado), as the Spanish foreign minister, José Manuel García Margallo, has defined the National Transition of Catalonia, may evidently impinge upon Scotland's constitutional transition in ways which are only just beginning to become apparent. Both transitions will ultimately be judged by historians to have interacted dynamically in a multiplicity of ways, whether we are currently able to identify them correctly or not, I venture to suggest. A prominent symbol of this process is already in our midst, of course: the distinctive Catalan design of the Scottish Parliament complex, for which we are indebted to the distinguished Catalan architect Enric Miralles. There it sits gleaming in the sunlight, like a shining promise of a better future and a better country.

POSTSCRIPT, February 6th
If you have followed the link to Dr Casanas-Adam's informative article on recent developments in Catalonia, you may be left wondering whether Article 92 of the Spanish constitution might indeed serve to defuse tensions:
"There is still another possibility, at least in theory: the Constitution enables the Spanish government to hold referendums on political issues of special importance (Art. 92). Such a referendum would not be legally binding, but its results would show the strength of the support for independence, and, at the same time, put a stop to the allegations that the central government is undemocratic. A well-respected constitutional lawyer (Rubio Llorente) has suggested that this could be a way to ease the tension." (Casanas-Adam, ibid.)
Here is Article 92:
1. Political decisions of special importance may be submitted to all citizens in a consultative referendum.
2. The referendum shall be called by the King on the President of the Government’s proposal after previous authorization by the Congress.
3. An organic act shall lay down the terms and procedures for the different kinds of referendum provided for in this Constitution.
Unfortunately, the Spanish government, which has declared that no part of the territory of the Spanish state has any constitutional right to secede, hardly seems very likely to reverse its position and proceed to cite an article of the constitution for the purpose of staging its own consultative referendum in order to ask the entire Spanish electorate to express an opinion on either Catalan secession or a Catalan secessionist referendum, both of which are already known to be opposed by an overwhelming majority of Spanish citizens, whose opinion is regarded as irrelevant in Catalonia.
It happens that the Catalan newspaper Ara published a report yesterday on a debate at the University of Pompeu Fabra, Barcelona, which covered this very topic. Article 92 was discussed there by three professors of constitutional law: Francesc de Carreras, Hèctor López Bofill and Àlex Sáiz Arnáiz. The article concludes as follows:
"(...) if the debate in terms of constitutional law is slippery and subject to interpretation, successive Spanish governments and previous judgments of the Spanish Constitutional Court having tended towards a restrictive reading of the text, the whole matter is complex in relation to European and international law. While a constitutional referendum is possible, it would depend on political will which does not appear to exist in either the People's Party [the Spanish governing party] or the Spanish Socialist Party [the principal Spanish opposition party]. (...)" (Ara, February 5th 2013)
In any case, Prime Minister Mariano Rajoy has indicated that he prefers to shelve constitutional issues until the various other crises afflicting Spain have subsided, i.e. its public-debt crisis, its economic crisis and the crisis of public morality (corruption in government) which is currently preoccupying the Spanish media. The Catalan Government, on the other hand, however, regards constitutional reform as a vitally urgent matter and naturally wishes to take advantage of all of these travails by pressing ahead without delay, particularly as the governing CiU's pact with the ERC cannot realistically be expected to survive if it does not do so, in which case the Catalan Government would then have no parliamentary majority, and the game would be lost.

Consequently, one is driven to the conclusion that, even if the Spanish government were to astonish the world by deciding after all to make use of Article 92 for the purpose of scheduling a Spanish consultative referendum of some description at a point in time to suit its convenience, more to take the wind out of the sails of the bothersome Catalans than for any other reason, that would seem unlikely to be sufficient to prevent the Catalan Government from holding its own 'illegal' consulta, I venture to suggest.

UPDATE, February 9th

The Spanish government has now indicated that it considers there to be grounds for referring the Declaration of Catalan Sovereignty to the Spanish Constitutional Court, as its legal advisers judge that Articles 1, 2, 9 and 168 of the Spanish constitution have been contravened.

Article1 states that sovereignty within the Spanish state resides in the Spanish people:

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 Parliamentary Monarchy.

Article 2 refers to the "indissoluble unity" of the Spanish nation and to the "common and indivisible homeland" of all Spaniards:

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.

Article 9 states that all public authority, regardless of its scope, is subject to the constitution:

1. Citizens and public authorities are bound by the Constitution and all other legal provisions.

2. It is the responsibility of the public authorities to promote conditions ensuring that freedom and equality of individuals and of the groups to which they belong are real and effective, to remove the obstacles preventing or hindering their full enjoyment, and to facilitate the participation of all citizens in political, economic, cultural and social life.

3. The Constitution guarantees the principle of legality, the hierarchy of legal provisions, the publicity of legal statutes, the non-retroactivity of punitive provisions that are not favourable to or are restrictive of individual rights, the certainty that the rule of law shall prevail, the accountability of public authorities, and the prohibition of arbitrary action of public authorities.

Article 168 specifies the procedure which must be followed if the constitution is to be reformed:

1. If a total revision of the Constitution is proposed, or a partial revision thereof, affecting the Preliminary Part, Chapter II, Division 1 of Part I; or Part II, the principle of the proposed reform shall be approved by a two-thirds majority of the members of each House, and the Cortes Generales shall immediately be dissolved.

2. The Houses elected thereupon must ratify the decision and proceed to examine the new constitutional text, which must be passed by a two-thirds majority of the members of each House.

3. Once the amendment has been passed by the Cortes Generales, it shall be submitted to ratification by referendum.

A cartoon in El País depicting the predictable reaction in Catalonia can be accessed by clicking here. In response to the Spanish state's accusation that the Generalitat has violated the constitution the Generalitat has fired back the counter-accusation that the Spanish state is violating democracy by seeking to deprive the Catalan people of their right to decide their constitutional future.

In response to the Catalan response Spain has in turn replied that Catalans are free to decide anything they wish within the limits of the constitution, which, however, apparently seeks to deny them a right which they see the people of Scotland preparing to exercise in 2014. The Caledonian example has led the First Minister of Catalonia to maintain that no state is entitled to enact or enforce constitutional provisions which prevent a nation from deciding its own future:

"Countries (...) have the right to decide how much self-government they want and what their future should be, and there are no rules, laws or constitutional provisions, or interpretations thereof, which can deny them that right, for this concerns the will of the people and rights which everyone should stand up for." (First Minister Artur Mas, Catalan Government press release, February 8th 2013)

To this statement the Spanish state has perfunctorily responded that the nation to which citizens of Spain belong is the Spanish nation, whose rights and obligations are stipulated in the basic law of the constitution, to which all citizens are required to submit and which the Spanish government is not at present proposing to reform. Nor is there any indication that consideration is being given to invoking the provisions of Article 92, in accordance with which, as explained above, it is open to the Spanish government to hold non-binding purely consultative referendums on political issues of special importance.

Dialogue de sourd. Impasse!

The essential cause of the impasse may be said to be twofold: (i) a clash of antithetical cultures and (ii) a clash of incompatible constitutional traditions.

(i) Clash of Cultures

"In considering every issue, whatever it may be, one encounters two diametrically opposed approaches: on the one hand the Catalan approach and on the other the Castilian or Spanish one; while the first is positive and realistic the second is fantasist and charlatanic; the first is informed by foresight, of which the second is totally devoid; the first is drawn from the climate of thought of modern industrial society, while the second is nourished by the prejudices of the hidalgo burdened by debt and puffed up with pride. Such are the distinctive characteristics of two peoples who are the antithesis of one another (...)" (La Question catalane: l'Espagne et la Catalogne; Notice adressée à la presse européenne par le comité nationaliste catalan de Paris, 1898)

(ii) Clash of Constitutional Traditions

On the one hand there is the concept of parliamentary sovereignty, which makes it possible for the Westminster legislature to approve a statutory instrument conferring on the devolved Scottish Parliament for a limited period the power to hold a binding referendum on a reserved matter. Because of the constitutional principle of the sovereignty of the Queen vested in the Westminster parliament, the holding of a referendum on Scottish independence in which only electors in Scotland are to take part is not constitutionally problematic.

In demanding that Catalans should be treated in the same way, the Catalan First Minister, on the other hand, is inevitably in conflict with the constitutional tradition of Spain, whose entrenched written constitution does not allow the Spanish parliament the freedom of action which the Westminster parliament enjoys. Whereas sovereignty resides in the latter according to the constitutional tradition by which it is governed, the Spanish parliament (Cortes Generales) merely exercises the sovereignty which is vested in the people of Spain in accordance with the basic constitutional law of the state. The indivisibility of that sovereignty implies the indivisibility of the people in whom it is vested and of the state of which they are citizens. This means that a Catalan challenge to the indivisibility of the Spanish people is constitutionally inseparable from a challenge to public order.

Consequently, Spanish legal experts are arguing that the Catalan First Minister's contention that provisions of the constitution standing in the way of a Catalan independence referendum can be brushed aside, on the basis of a claim that sovereignty resides in the Catalan people, ineluctably exposes him to the possibility of a charge of sedition under Article 544 of the Spanish Penal Code, according to which persons are guilty of sedition "who engage in any act against public order, whether violently or by other illegal means, for the purpose of impeding the application of the law or the established authority of official bodies or public officials in the legitimate exercise of their functions in relation to administrative or judicial decisions."

That is why the Spanish government's announcement that it is actively considering referring the Catalan Parliament's declaration of sovereignty to the Spanish Constitutional Court appears to be a shot across the bows which cannot be ignored without consequence. Yet First Minister Mas and his government appear to have chosen to ignore it, as, according to media reports, they seem to be intent upon pressing ahead with the creation of a Council for Catalan National Transition next week.

It is worth remembering that all previous Catalan attempts to usurp the power of the Spanish state, as one might put it, have been firmly resisted.

After republican victory in municipal elections which were held following the demise of the dictatorship of Primo de Rivera, Francesc Macià i Llussà proclaimed a Free Catalan Republic in Barcelona on April 14th 1931, entirely unilaterally and slightly in advance of the proclamation of the Spanish Republic.


A delegation from Madrid swiftly descended on him, however, within days, to force him to settle (albeit on a supposedly provisional basis) for partial autonomy within the reconstituted Spanish state.

"In the first moments after recovering freedoms which we have not enjoyed for centuries we should not let ourselves be carried away by the enthusiasm of victory or the sensation which one feels when faced with further battles.

Today, in fact, our problem is related to another factor in the revolution which we have accomplished together with our free brothers in the rest of Spain, a revolution which has put an end to the Spanish monarchy. Consequently, we have seen that, in our own best interests and in the spirit of republican solidarity, it has been necessary for us to surrender, for a short period, part of the sovereignty to which we are entitled. But this temporary limitation of sovereignty, which we have accepted voluntarily, should serve to intensify our faith and the confidence which we have in our principles and allow us to prepare the means by which we shall consolidate them. It can thus constitute the best guarantee of our ultimate victory." (Francesc Macià)

Macià was President of the Generalitat from 1932 until his death in 1933. He is buried at Montjuïc Cemetery on Barcelona's Montjuïc Hill, as is Lluís Companys i Jover, the 123rd President of the Generalitat, who was executed at Montjuïc Castle on October 15th 1940 after being convicted of rebellion. What is to become of the 129th President we shall see in due course. A firing squad may be out of the question in the present day, but disqualification from holding public office is not.

"Obviously, the secessionist agitation in Catalonia does pose a systemic threat to that post-Franco arrangement. Should the wealthy eastern region peel away, it would be natural to expect a reflux of deep ultra-Spanish embitterment; and if the country's 'black legend' is a useful guide to future behaviour, the irate Iberians will not choose a response based on Gandhian satyagraha." (Ivan Briscoe, Spanish Slush, Buenos Aires Herald, February 11th 2013)

UPDATE, February 12th

Catalan Government spokesman Francesc Homs making the announcement at a press conference
"This body is to advise the Executive on the consultation process and on the identification and promotion of state structures. It reflects the commitment of First Minister Mas to the Catalan people's right to decide." (the opening statement in the document issued by the Catalan Government) In other words, the purpose of the Council for National Transition would appear to be not only to make arrangements for a referendum on the creation of a Catalan state but to plan the institutions which such a state would require so that they can be put in place as expeditiously as possible.

Full details can be accessed by clicking here.


Cardinal Richelieu (1585-1642)

Richelieu was wary of the Catalans. When they sought the protection of Louis XIII in 1641, the reasons they gave for unilaterally divesting themselves of the authority of Castile were recorded by the French authorities as follows:

"The main reason why the Catalans have released themselves from any obligation to acknowledge the authority of the King of Spain is, they say, that he has suffered their privileges to be violated by allowing extraordinary disorder at the hands of military forces and that he has himself violated those privileges in other ways on his own authority. This extinguishes their duties in respect of that authority, as these were dependent on faithful maintenance of their privileges (...)" (Mémoires et instructions pour servir dans les négociations et affaires concernant la France, Denys Godefroy le jeune, 1689)

The Catalans further averred that, according to a treaty entered into with James I, King of Aragon, at Valencia on January 19th 1248, the Principality of Catalonia was never to be subject to the jurisdiction of the Kingdom of Castile, or united with it or incorporated into it.

"Richelieu would rather have seen Catalonia form itself into an independent republic, under the protection of France, than accept it as a province, and he had charged Duplessis with the task of proposing this to the Corts: his reasons for this are not far to seek. The main one is that the First Minister of Louis XIII did not doubt that sooner or later the Catalans would exert themselves to the utmost for their liberty, as it was in their interests to do so; therefore, in receiving them as subjects of the Crown, France would be burdening itself [rather than Castile] with the trouble of struggling to hold on to Catalonia as a province. It did not seem to Richelieu that the expenditures to which the kingdom already found itself committed  would be sufficiently guaranteed if it were to acquire a territory which it could not be sure of retaining permanently because of its location on the other side of the Pyrenees and equally in view of the rather well-known inconstancy and political sensitivity of its inhabitants." (Histoire de Roussillon: comprenant l'histoire du royaume de Majorque, Volume 2, Dominique Marie Joseph Henry, 1835)

On the subject of "the trouble of struggling to hold on to Catalonia as a province" in the face of "the rather well-known inconstancy and political sensitivity" of the Catalans, an oft-quoted Spanish political maxim springs to mind:

"To govern Spain well it is necessary to bombard Barcelona [the capital of Catalonia] at least once every fifty years." (General Joaquín Baldomero Fernández-Espartero Álvarez de Toro, Prince of Vergara, Duke of la Victoria, etc., etc., etc., Governor of Navarre, Regent and President of the Council of Ministers of Spain, 1842)

Bombardment of Barcelona by General Espartero on December 3rd 1842
Prior to General Espartero's brutal bombardment of Barcelona from Montjuïc Castle in December 1842 the following thematically familiar proclamation was issued by one of the leaders of the Catalan insurrection which it was intended to quell:
"Citizens, valiant National Guards and all Catalans! The time has come to fight the tyrants who have sought to hold us down under an iron yoke. It was with indescribable pleasure that I saw you risk your lives by enduring the greatest sacrifices to save our national independence. I saw the enthusiasm with which you ran forward to face the onslaught of those who, led astray by leaders who are as despotic as they are tyrannical, wanted to sweep away our most cherished rights. Their cause did not inspire them to fight against us. An iron fist simply forced them into a crime which is as infernal as it is abominable.
Because you have demonstrated that you want to be free, you will be free, despite an imbecile government which destroys your industries and harms your interests and would eventually place you in the most precarious and deplorable of situations, in the most degrading misery.
Let your only watchword be to make the Catalan nation respected; let there be unity and fraternity among you, and let us not be deceived, my brothers, by the seductive words of refined ambition and treachery (...)"
Plus ça change, plus c'est la même chose. It is as if there has been a fire burning for centuries in Catalonia, which the Castilians are incapable of extinguishing (if you will pardon the use of the term). After every insurrectionist episode embers are always left smouldering, which sooner or later burst into flames again, when winds of change sweep over Europe, as happened in the 1930s and as is happening now.