The Unilateral Declaration of Independence in Catalonia, 2017: strategies of legitimation in political discourses.
Ramir Rabaza Jiménez
European Studies Bachelor Thesis 15 Credits Spring 2020 Supervisor: Fredrik Lindström
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Abstract: The relation between the Catalan nationalist forces as well as the other sub-nationalisms and the Spanish Government has been a matter discussed throughout all the Spanish democracy. In recent years the challenge to the Spanish state set by the Catalan government when taking a unilateral approach on Independence has resulted in the imprisonment and exile of political leaders. The aim of this thesis is to analyse the events that occurred in Catalonia after the Catalan elections of 2015 and the unilateral approach on self-determination taken by the Catalan Autonomous Government with the promise of a binding referendum. The laws passed by the Catalan government which were rejected by the Constitutional Court, as the law itself denied the authority of the Constitutional Court and declared independence. This resulted in the application of the 155th article of the Spanish Constitution, suspending autonomous government, to enforce the Constitutional Court’s resolutions by the Spanish government. The essay will focus on the discourses given by politicians to criticize or justify these actions, analysed through theoretical and political normative perspectives.
Keywords: Spain, Catalonia, autonomy, referendum, sovereignty, constitutionalism, self- determination, secession, independence, sub-nationalisms.
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Table of Contents
1. Introduction ...... 4 1.1 Contextualisation ...... 5 1.2 Mapping the polit ical part ies in Catalonia ...... 7 2. Previous Literature ...... 7 3. Aim and Research Question...... 10 4. Theoretical Framework ...... 11 4.1 Adaptation of WPR Approach ...... 12 4.2 Delimitations ...... 14 5. Analys is...... 14 5.1 Political approaches taken by the different sides to justify their actions...... 14 5.2. What blockages to a solution for Spain and Catalonia that are created by these inter-locked legit imisations can be identif ied? ...... 18 5.2.1 155th Article Application in the Senate and the Discourses...... 18 5.2.2 ‘Law of Juridical Transition and Foundation of the Republic' discourses in the Catalan Parliament ...... 23 5.3 What solutions can be perceived by looking beyond the tacit assumptions built into the antagonistic positions taken? ...... 27 5.3.1 Questioning Discourses Given in Public...... 32 5.3.2 Discussion Regarding Separation of Powers ...... 33 6. Conclusion...... 34 Bibliography ...... 37
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1. Introduction
On 1st October 2017 a referendum was celebrated in Catalonia with the compliance of the autonomous government. The referendum was the summit of the unilateral approach on independence taken by the parties forming the Catalan government after the failed attempts of negotiating a legal self-determination referendum for Catalonia in the recent years. The Catalan government used all the tools and powers they had to celebrate and legally protect the referendum. However this referendum was clearly illegal as stated by the resolutions of the Spanish Constitutional Court and to the current statute of autonomy. As a result of this disobedience, the central government imposed rule in Catalonia by constitutional mechanis ms. This paper will analyse the political discourses given to justify the actions taken by the differe nt actors that lead to the current scenario by using political theories on the topics of sovereignty, secession and the territorial model of nations and states. A brief introduction of the formation of the regiona l model of Spain is going to be explained to later asses the rights and powers that the differe nt regional autonomies have in Spain as the territorial model of Spain is one of the main topics of the debate on independence.
The territorial formation of modern Spain dates back to the 19th century in an administrative model formed by provinces. In the early 20th century, regionalist movements in Spain began to gain influence and provinces were allowed to join in a commonwealth of provinces although the only one formed in 1914 was the one of Catalonia. During Primo de Rivera’s dictatorship (1923-1930), he strengthened the province model and abolished the formation of the Catalan commonwealth in order to centralise the state. During the second republic (1931-1939) in Spain, regionalisms once again reactivated and the province model was considered outdated allowing the formatio n of autonomous regions. The 50 provinces were distributed in 15 regions. The first government of the second republic was propitious to satisfy the Catalan demands and a referendum on their statue was approved in 1931. During Franco’s dictatorship between 1936 and 1977, a return to the model of provinces caused regions to lose their administrative and political power. Between 1977 and 1983, the territorial map of Spain was defined, consequently two agreements in 1981 and 1992 respectively set the power distribution
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in the law. The Spanish Constitution did not establish a regional map and allowed autonomous communities to be formed within the constitutional frame and regulated by their statutes of autonomy. The Constitution attempted to solve the territorial and regional question in Spain by a new model, not federal, however by giving to their regions mechanisms and capacity to decentralise more than most federal states (Prieto, 2017;Gómez Díaz, 2014).
1.1 Contextualisation
Today the Spanish State is divided into 17 autonomous communities and 2 autonomous cities (Ceuta and Melilla). These autonomous regions are recognised in the constitution and have differing levels of self-government depending on their Statutes of Autonomy. For instance, the Basque, Catalonia and Navarre Autonomous Governments have an autonomous police forc e under the rules of the autonomous governments, reducing the presence of Guardia Civil and National Police in their provinces. The Statutes of Autonomy have to be voted and approved in the Spanish Parliament and are subject to the Spanish constitutional framework. There are discussions on the limits and powers that Autonomous communities have as the statutes regulate them but there is no constitutional guideline to the degree of decentralisation. The present Spanish Constitution itself allows any power transfers between states and autonomous communities as far as the statutes regulating them are passed in the parliaments and within the constitutional limits (Marón, 2014).
This means that the present constitution has a mechanism for expanding the autonomy of the regions. In fact, the administrative powers transfers and decentralisations to the Catalan autonomous region through negotiations with the Spanish governments in the late 90s and early 2000s was considerable while pro-independence forces did not have more than a 30% of social support (Zambelli, 2015). In later years, conflicts have emerged in this field, conflicts that are of both political and juridical character. They are connected with long-standing legal- theoretical and political-philosophical issues, which will form the most general level of my investigation of one of these conflicts, concerning Catalan autonomy and the issue of independence.
The latest phase in this conflict began in 2006. In this year the Catalan government approved through a referendum to change the Statute of Autonomy which was partially denied in 2007 by the Spanish Constitutional Court due to some articles considering Catalonia as a Nation
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(Boletín Oficial del Estado, 2010). However, since 2012 when the ‘Catalan independence process’ began with the victory in the elections of ‘Convergencia i Unió’, the liberal- conservative pro-Catalan party, in a context of economic crisis and for the first time with a clear Catalan nationalist agenda. The tension between the Spanish Government and the nationalist sectors of the Catalan society, due to the demands in terms of autonomy and territoriality, placed in the Catalan Government agenda the debate on independence and secession from the state. Part of the civil society partial to Catalan self-governance was mobilised and encouraged the politica l project for a popular consultation on the future of Catalonia. As well as actions in the Catalan parliament like the voting and passing of a ‘Declaration of Sovereignty and Right to Decide’ for the Catalan nation in March 2013 in order to prepare the first popular consultation. The Spanish state’s attorney appealed to the Constitutional Court, which passed and consequently the Constitutional court rejected this consultation and the laws designed in the Catalan parliament to prepare it. This first popular consultation was carried on 9th of November of 2015 and its result were not legally bind in g, thus irrelevant in legal terms. However, there were discrepancies within the Spanish institut io ns and its courts regarding the legal power of a Catalan government to make such popular consultation as territoriality is not a matter of an autonomous government.
After this build-up the pro-Catalan parties Convergencia Democratica de Catalunya (CDC) ‘The Democratic Convergence of Catalunya’ and Esquerra Republicana de Catalunya (ERC) ‘Republican Left of Catalonia’ ran in the elections as a coalitio n called Junts pel Sí (JxS í) ‘Together for Yes’ and described their election programme as a plebiscite on independence. If independence forces had won, they would try to achieve by all the means a binding self- determination referendum. ‘JxSí’ won the elections although not achieving majority themselves, nevertheless they were able to achieve the absolute majority in the parliament with the support of the anti-capitalist pro-independence party (CUP). Although results of the plebiscite election were not clear as ‘the explicitly pro-independence parties obtained an absolute parliamentary majority, with 47.8% of the votes. Meanwhile, the parties explicitly opposed to independence won 39.17% of the votes, while the parties explicitly in favour of holding a referendum, yet with no unambiguous position on independence, secured 11.45%’. (Kraus, 2017, p. 19). By promising that achieving independence by all means they would commit serious infringements of legal order. This development sharpened the conflict and le d to a veritable ‘stress test’ of the constitutional mechanism mentioned above.
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1.2 Mapping the political parties in Catalonia
Historically the strongest Catalan-based party after the first elections in 1977, during the years of the Spanish transitio n, has been Convèrgencia i Unió (CiU), a moderate Catalan nationalist and Christian democrat formation, which historically has held power until recent times. Esquerra Republicana de Catalunya (ERC), the dominant force under the Second Republic, re- emerged as a more strongly nationalist, left-centre and republican competitor. The main opposition was the Partit dels Socialis tes de Catalunya (PSC) (Socialists' Party of Catalonia) affiliated to the (PSOE) ‘Spanish Socialis t Workers Party’. Spain's main conservative party, the Partido Popular (PP) ‘People’s Party’, has historically fared badly in Catalonia, as it is judged insufficiently Catalan and the centre-right ground is occupied by CiU. (Keating, 1996, pp. 121-122)
In recent years the political sphere has changed drastically in Catalonia with the start of the independence process, CiU which was as coalition of CDC and Unió Democratica de Catalunya (UDC) went their separate ways due to differences in the independence process. Unio’s popular support dissipated while Convergènc ia acquired a more nationalist approach and changed its name for PDeCAT and ran for the elections in 2016 together with ERC as a coalition. The emergence of Ciudadanos as the Liberal Center-Right wing Catalan-based party consolidating itself as the major force defending the Spanish unity and contesting secessionism taking the political space of PP and right-wing constitutionalism in Catalonia. The breakthrough of the left-wing party Podemos at a national level also boosted its affiliated party in Catalonia represented in the coalition En Comú Podem taking the left wing space in Catalonia with certain ambiguity regarding its stance on a possible independence referendum. Additionally, the Candidatura d’Unitat Popular (CUP) ‘Popular Unity Candidacy’ with a strong left-wing approach and pro-Catalan secession which has been necessary in order to guarantee an absolute majority of secessionist forces in the parliament. In Catalonia civil society is als o mobilised particularly in the side of Catalan Nationalism with two large pro-independence platforms such as Omnium Cultural and Assamblea Nacional Catalana (ANC) ‘Catalan National Assembly’.
2. Previous Literature
Concepts such as ‘nations’, ‘sovereignty’ and normative types of state have been studied from different perspectives, ideologies and disciplines. Carl Schmitt one of the most prominent
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politica l theorists who argued about the behaviour of the states with a special focus on sovereignty. He theorised about the exception making it useful for this essay as the 155th article of the Constitution which allows the Spanish government to suspend the autonomy is a fo r m of legal exception (Schmitt, 1976). He had supreme vision of state as he considered it to have all the political power and pointed out the weaknesses that liberal democracy could entail. Jurgen Habermas was also a political theorist from the Frankfurt School who criticis ed some of Carl Schmitt’s premises and theorised differently about some of the topics and discussed the concept of othering political opponents, in which this thesis will be useful due to the constant othering of Catalan and Spanish nationalism (Habermas, 1998).
The questions regarding territoriality and sub-nationalisms within states as it is the case of Catalonia have also been a matter discussed by many academics and politicians through history. For instance, during the formation of states and the national conflicts at the beginning of the 20th Century and the victory of communism in Russia the social democratic and communist movements had discrepancies about how to approach nationality, sub-nationalisms and differe nt forms of state.
Self-determination and secession rights have also been explored by different disciplines such as in International Relations, theorising types of moral justifications for secession (Pavković, 2003). For instance, James Summers analyses self-determination by dividing it into two levels, one external and one internal. He assumes this problem when a political unit within a sovereign state which exercises some degree of self-government. “…their legal status would normally be derived from the state’s constitution or national law” (Summmers, 2013). Hereby he assumes that self-determination in its external level would be conflictive against other units in the state or against the state in its entire. “When viewed collectively those units could be the expression of the self-determination of the whole population of a state as a people determining its form of politica l organisatio n” (Summmers, 2013). Self-determination right of Catalonia as a politica l unit would not be as conflictive at the internal level if we assume certain political or democratic legitimation of the Autonomous Government but would conflict with the legal status of the Spanish State and also with the whole self-determination right of the Spanish people. At the interna l level conflict would be caused by the division of the society and people that want to remain in the existing constitutional framework. At the external level as it is going to be analysed it is already conflictive as the political status and rights of the Catalan institution’s power emanate and are ultimately subjected to the Spanish rule of law as it is a political unit depending on a Sovereign State.
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Providing a more precise analysis on the Catalan case, the book Nations against the State, The new Politics of Nationalis m in Quebec and Catalonia and Scotland (Keating, 1996). Although a bit outdated for the recent events, the book explains the historical formation of Spain with a strong focus on the transition and on the practices and development of Catalan nationalism during that period. The book is mainly descriptive and maps out the degree of national identity which Catalonia had at the time. Furthermore, it was written when the separatist sentiment was weak but there was a strong nationalist commitment to promote Catalonia as a different national community from Spain within Europe.
The analysis of this recent events occurred between 2015 and 2018 and the policies implemented by the respective governments. Due to its recency, this thesis was unable to gain access to any literature focusing on the events analysed in this thesis. However, in certain previous literature foreshadowed the current scene and the most recent contributions to the debate are present below. Making use of the literature that has already discussed the subject in the previous years, this thesis will attempt to analyse the events in the recent times beyond the pure juridical analysis. This thesis aims to be one of the starting points for further analysis on the policymaking and discourses during this period of time in the attempt by the Catalan Government to make a referendum for independence as the culmination of the ‘Catalan Process’.
In his PhD thesis Bossacoma (2014) theorises about a possible right for self-determination of the Catalan nation from different political stances to contribute to the ‘debate’. He defends his position for a self-determination in Catalonia based on the ‘contractualist’ method of John Rawls used for the understanding of liberal states presented in his work “A theory of Justice”. He presents that his essay is based in a hypothetical multinational contract assuming Catalonia as a nation. The author also analyses diverse legal constitutions such as the UN resolutions and constitutional, international and European law are used as empirical material discussed and contrasted with the liberal and political theories of diverse academics and thinkers to discuss the matter in Catalonia with a strong influence of Liberal thinkers such as Charles Taylor, Kelsen or Buchanan.
‘The Catalan Process, Self-Determination and Democracy in the 21st Century’ (Kraus, 2017). It details a complete explanation and discussion on the central points of the Catalan Independence debate such as the right to decide, secession, constitutionalism, national pluralism. Some of the chapters in the book cite Bossacoma’s work.
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The book is published by ‘L’Institut d’Estudis de l’Autogovern (IEA)’, an academic think-tank linked to the Catalan Government which focuses in the analysis of institutions, actors and process within democratic states, the EU and secession movements.
3. Aim and Research Question.
The aim of this essay is to provide an analysis of the problem introduced above regarding the events of the ‘Catalan Process’ in the recent years. After the 2015 elections when the elected Catalan government formed by the coalition JxSí attempted to pursue a unilateral approach on independence without achieving independence by not obeying the resolutions of the Constitutional Court. Thus, breaking down the political motivation behind the actions taken by the two principal sides in the problem. On one hand, the Catalan government formed by Jxsí, a coalition of the CDC; traditiona l pro-Catalan right wing party and ERC traditional pro- Catalan left wing party. In contrary, the Spanish Government formed by the Conservative party Partido Popular (People’s Party), assisted by the support of other forces in the Spanish parliament, mainly traditional Spanish Socialist Party (PSOE) and centre-right liberal Ciudadanos.
Due to the fact that there have already been scholars assessing the self-determination process and the Catalan territorial question, this thesis aims to analyse the political actors and events occurred in Catalonia in 2017-2018 regarding the illegal Self-Determination Referendum and the application of the 155th article in the Spanish Constitution (C.E., 1978 art 155) to allow the central government to take over the Catalan institutions after the ille ga l Unilatera l Declaratio n of Independence. This essay will also assess different views on the issue, whilst acknowledging their discrepancies it will attempt a political theorisation of the ideals of nation and state and the view on self-determination held by the different parties involved. The thesis will focus mainly on the actions and political stances of the Catalan and Spanish political parties regarding the passing of the “Law of juridical transition and foundation of the Republic” (Diari Oficial de la Generalitat de Catalunya, 2017) and the application of the article 155th of the Spanish Constitution which was used as an exceptional measure passed in the Senate by the Spanish Government to take over control of the Catalan autonomy and its government to avoid the parallel unconstitutional legal framework created. Such views will be mapped across normative political perspectives to see which political and ideological viewpoints and stances can be
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applied to analyse the policies and arguments given by the actors to justify these policies. Furthermore, this thesis will analyse how these political and ideological viewpoints inter-lock and thereby block the road to solving the conflict. Lastly, discuss how these inter-locked blockages may be dissolved and thus open the perspective to solutions that are blended out by the ideological and political positions taken in the current conflict.
The three research questions to achieve this aim would be:
1. Q1. How did the political parties in the Spanish and Catalan Governments legitimise their actions and policies with respect to the Unilateral Declaration of Independence and the illegal referendum in 2017? 2. Q2. What blockages to a solution for Spain and Catalonia are created by these inter-locked legitimisations can be identified? 3. Q3. What solutions can be perceived by looking beyond the tacit assumptions built into the antagonistic positions taken?
To draw back and take a theoretical view on the matter through politica l philosophy, a modified WPR approach will be used to analyse the investigated problem and answer the given research questions, which will be developed in the section below.
4. Theoretical Framework
The WPR method stands for “what is the problem represented to be” and it is a method suggested by Carol Bacchi to analyse policy making. The WPR approach is frequently applied to analyse a specific policy. However (Bacchi, 2014) states an understanding of policy as a broader understanding than a fix legal policy and in this thesis a set of policies which als o encompass political actions are going to be evaluated. In this paper, the WPR method will be used to analyse through a set of specified questions the approach by the Catalan Government of JxSí during 2016-2018 of unilateral independence and their policies to achieve this as well as the response by the Spanish Government and its authorities. Hence both positions of the problem and their defence of policymaking have to be analysed in order to understand the whole issue.
The root causes of the problem could be considered inversely proportional for both sides. For the Catalan Government during that period of time the problem is considered the Spanish State which according to them lacks certain democratic standards, is oppressive or belittles the right to decide the Catalan society, and the Spanish government does attempt to change this
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paradigm. On the other hand for the Spanish government side the problem would be the inverse, a part of the Catalan society were misled to believe that a rupture with the Spanish State would be positive and the approach taken by the Catalan government since 2014 completely challenges the state’s constitutional basis and its rule of law. The policies adopted are also opposite: while the Catalan Government tries to attempt a Referendum on independence creating a parallel legality, the Spanish Government applies the article 155th of the Constitutio n to restore the constitutional legality in the Autonomous community of Catalonia.
Bacchi’s method as constructionist and post positivist method defines that the discourse analysis done in the WPR method transcends the language usage. It rather analyses the social effect that discourse sets through a Foucauldian approach. In regard to the aim of the thesis, discourse is very important because the WPR method assumes that “discourses accomplish things” (Bacchi, 2014, p. 35). Differences in discourses and termino lo gy might imply diffe r e nt apprehensions in reality. Linguistic nuances such as the regard of Catalonia as a nation, the usage of the term ‘self-determination’ instead of the term ‘secession’ in order to define the reality implie s a decision by the author with different connotations to explain the same facts. Therefore, the language and analysis of the issue is shaped within a certain perspective due to the nature of the approach which considers the researcher as an active actor in the research. According to the method, governments and policy makes are also prisoners of their own linguistic choices.
4.1 Adaptation of WPR Approach
Bacchi suggests a set of questions to operationalise the WPR method in order to analyse the policies. The three questions stated in the section above are derived from Bacchi’s method. Such questions can be adapted to overcome any inconvenience and to be able to analyse more in depth and for reasons of simplification. The WPR approach originally consists of six interlinked questions to address the problem representation. Where the first question is a clarification exercise, the second question identifies the ontological and epistemological assumptions through conceptual premises. The purpose third question of the WPR approach is to highlight the conditions that allow a particular problem to take shape. Question number four attempts to address and evaluate what other perspectives and issues can be found in the beyond the problem representation. Question number five is to identify the effects to critically assess them and the sixth question pays attention to the means through how the problem representations become dominant (Bacchi, 2014).
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The six preliminary questions can be seen bellow:
Question 1: What’s the problem represented to be in a specific policy or policies? Question 2: What deep-seated presuppositions or assumptions underlie the representation of the “problem”? Question 3: How has this representation of the “problem” come about? Question 4: What is left unproblematic in this problem representation? Where are the silences? Can the “problem” be conceptualized differently? Question 5: What effects (discursive, subjectification, lived) are produced by this representation of the “problem”? Question 6: How and where has this representation of the “problem” been produced, disseminated and defended? How has it been and/or how can it be disrupted and replaced? Question 7: Apply this list of questions to your own problem representations (Bacchi, 2014, p. 2)
As stated in Section 3. Aim and Research questions, the preliminary questions will be modified due to selection of the material used and to remain concise. Bacchi’s preliminary questions it will serve as a guideline to carry out the questions above mentioned. This first research question ‘Q1’ mentioned in section 3, encompasses the first two preliminary questions suggested by Bacchi. The problem is be presented with the arguments that led to the particular political scenario such as the ongoing epistemological debates regarding the degree of Autonomy, the definition of Nation and self-determination in section 5.1.
“WPR draws upon constructionist premises. It challenges the presumption in both 'authorised choice' and 'structured interaction”, thus suggesting WPR does not only recognise governments reacting to problems but interrelated as a part of the creation of the problems through policies (Bacchi, 2014, pp. 25-33). According to the WPR method, we are governed through “problematisations”. Thus, this thesis will include the debates in parliamentary sessions where politic ia ns define their respective positions and views on the problems, as well as interviews of politicians explaining their views and infor med decisions, which appropriately aligns with the model. The second research question ‘Q2’ encompasses the question 3 and 5 of Bacchi’s preliminary questions stated above. Q2 includes the discourses regarding the application of the 155th Article of the constitution in response to the legislation passed in the Catalan parlia me nt which was contrary to the criteria of the Spanish Constitutional Court. It will evaluate the politica l stances the discourses of the party representatives defending the applicatio n of their
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policies by highlighting the conditions that lead to this scenario. The effects and discourses will be critically analysed and framed it into the definitio ns of normative political and academic positions. The third question ‘Q3’ is based on Bacchi’s preliminary questions 4 and 6 . It will theorise about the “third way” and other views and facts which have been left ‘unproblematic’ beyond the two interlocked positions and why these are dominant. This question will als o review the events to dig deeper into what happened beyond the public discourses and perspectives given at the time to spot the ‘silences’.
4.2 Delimitations
Due to the complexity of the topic and all the events occurring during this time, some actors and actions will have to be overlooked to a certain extent and a significant limitation will be the selection of material. The main primary source used will be the statements made in the parliamentary debates and in the Senate by the politicians as well as interviews and other expressions of opinion through different channels, therefore its analysis will be qualitat i ve. Theory will be used to analyse and to point out which understandings and premises of the problem do the respective parties embody. Even within the same party sometimes there are contradictions and discrepancies which can be a useful source of analysis but are also a limiting. Therefore the limited selection of literary material in both theoretical and empirical sources will have an obvious effect on the results.
There has been a trial on part of the Catalan Government actions and civil society representatives by the Spanish Supreme Court, therefore a legal analysis on some of the taken actions has already been made. This thesis is not aiming to do a legal analysis to confir m or criticize the Supreme Court’s judgement but rather to apply an ideological and even philosophical evaluation on the approaches and political stances that lead to this scenario.
5. Analys is
5.1 Political approaches taken by the different sides to justify their actions.
There is not a single approach nor ideology of the Catalan independence movement as such. However after the elections in 2015 when the two majoritarian parties in the pro-independence side ran together in the Autonomy Elections in 2015 and the two biggest transversal platforms
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of civil society, Assamblea Nacional Catalana and Omnium Cultural, stated the fact that they are a nation and they have the right to decide their future. After the Constitutional Court refuted most of the 2006 Statute of Autonomy due to considering Catalonia a Nation, Omnium cultur a l called for a demonstration, which was supported by the Catalan parties and a large part of the civil society with the motto “We are a Nation, we decide” and in a clear defence of the right of self-determination (La Vanguardia , 2010).
The discussion regarding the status of Catalonia as a ‘nation’ is one of the main arguments brought to the debate, not only in Catalonia but in other regions of Spain, which notably could be also considered as nations. The definition of nation is still not specific when applied. The Spanish Constitution (C.E., 1978, art. 2) recognises nationalities but not nations while affirming that the fundamentals of the constitution are built upon the unity of the Spanish nation. The Spanish Constitutional court has been reticent about recognising the Autonomo us Community of Catalonia as having the status of Nation as it was the main issue when some articles of the 2006 Statute were revoked. (Boletín Oficial del Estado, 2010). Therefore, the Constitution article can be understood as the peoples in the Spanish State have the ability to pursue their sub-national nationality within the autonomous system as far as this realization of nationa l identity does not break the Spanish territorial unity as comprehended in the constitution.
There exist many discrepancies in the consideration of Catalonia as a nation even within the same party and within similar ideologies not having a clear answer. Among the Catalan pro- independence and pro-sovereigntist forces there is a sort of unanimity of considering Catalonia a nation itself but in the so-called constitutional forces it seems rather unclear particularly on the left. PSOE and its affiliated party in Catalonia PSC had sometimes recognise Spain as a “plurinational” state although this opinion is not established within the party. In Podemos the term is mentioned in its official political programme but without suggesting any further development of it (PODEMOS, 2019). Pedro Sanchez as the president of PSOE and currently the Spanish Prime Minister sometimes has referred to Spain as a “multinational” state but he has also stated other times that his will is to strengthen the Autonomous Community mod e l (Merino, 2019). It is rather unclear whether the forces of the left spectrum in Spain are aiming towards a federative model with a higher degree of protection of the different nationalities in the state, which would require a constitutional reform, or just minor changes in the current autonomies model. This ambiguity by PSOE has been one of the discrepancies with the other major constitutional force as the PP leader, Pablo Casado, asked in the last electoral debate
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what type of multinational state he was referring to, and a concrete question that Pedro Sanchez was not able to answer: how many nations are there in Spain? (Casado, 2019).
It is also relevant to mentio n the fact that when the 2006 Statute was passed the PSC was in the Catalan Government and the PSOE had the presidency in the Spanish government allowing it to pass the voting in the Spanish Parliament. The appeal passed by the Constitutional Court was made by the PP which voted against by them in both parliaments (Company, 2006). It can be assumed that this divergence within the consideration of ‘nation’ by some of the constitutional forces which although united in applying the 155th Article have differences in their interpretation of the constitution and the country itself. Having differences on their views of the nation, constitutional forces proved certain unity to strengthen the constitutio na l perspective and face the challenge of the Catalan Government as a matter of the State. To conduct the thesis and to provide a complete analysis of the problem it is necessary to have both sides apart to see the ‘action reaction’ and deconstruct the problem to its basis of territoriality and sovereignty within democratic states.
The ‘Law of juridical transition and foundation of the Republic’ passed in the Catalan Parliament tries to break with the constitutional legal framework in Spain. The constitutio na l framework in Spain is the problem for part of the Catalan society and the parties representing them as ultimately legislation passed in the parliaments is revised by the higher courts in Spain. The appliance of the 155th article in the Spanish Senate can be understood as a response to this breach of legality and restore the constitutional order which the Autonomous government in Catalonia had subverted.
The mere recognition of Catalonia as a full nation would be dangerous for the unity of Spain fundamentally for the article two of the Spanish Constitution as it overwrites the Statute of Autonomy. Recognising Catalonia as a nation even though without a change on the constitutio n would not have practical effects within the Spanish State, it would increase the degree of political unit and thus giving stronger arguments for the independence movement which could gain more recognition nationally and internationally. In some of the views on Internatio na l Relations such as the debate on the right of self-determination and in political theory, the status of nation underpins certain rights for the people’s to decide their own future. As Habermas explains, “The nationality principle implies a right of national self-determination. According to this principle, every nation that wishes to govern itself has the right to exist as an independent state” (Habermas, 1998, p. 140). United Nations also recognised the right of peoples to decide
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its future and the right to nationality. There is ambiguity regarding the principle of people’s and nationality as it is conceived for a post-war and colonial contexts and fosters states to recognise the right of self-determina tio n (Office of the United Nations High Commissioner for Human Rights, 1966). Catalan society as stated, is neither nationally nor ethnica lly homogeneous as colonies in post-war periods, but certain articles could be extrapolated to the case. However, Habermas discusses about the application of this principle “How are we to define the totality of those to whom citizens' rights should legitimately apply?” A problematisation of the demos and the legitimacy of a hypothetical right to decide, raises the question about which people have the right to vote and thus decide about the independence.
Considering that the Autonomous Community of Catalonia is conceived upon the territory built upon the Spanish administrative and legal framework, not even within pro-independence parties there is an agreement as to who belongs to the Catalan nation. Historically territories like Perpignan or parts of the Autonomous Community of Valencia and The Balearic Island s which share common language with a different dialect are considered by some people as part of the historica l nation. An example of this can be seen in an interview with ERC leader Oriol Junqueras stated that Catalan Countries which include these cultural and linguistically united territories are a political reality (ACN, 2012). This ambivalence of nationalities in the constitution and to an extent certain parts of Catalan secessionism plays in favour of the Spanish sovereignty as the national target is undefined. A non-defined Catalan nationa lis m makes a weaker sub-national unit. If the autonomous statute referred to the autonomous community as a nation, it could be critical for the Spanish unity. This would give a mor a l legitimacy to pursue of self-determination institutions in the Catalan autonomy and further define the territory for the nation to be built. The unilateral approach applied by Catalan parties capitalises on pursuing self-determination and moral rights as Spanish institutions and its legal framework does not intend to follow such trajectory within its legal path. As mentioned by ERC representative the voting patterns of a large part of the Catalan Autonomy population, estimating around 50% voting for parties that pursue independence or at least willing to change their political status with the Spanish State should be a concern despite not supporting the current political-legal framework (Diario de Sesiones del Senado, 2017).
Hereby the consideration of Catalonia as a historical nation underpins a territorial problem of the concept of Catalan nation and the rights of these peoples. On the one hand, the lack of dialogue understanding of Catalonia as a political unit with certain rights and other reasons given for unilateral approach of self-determination. On the other hand, the appeal by the
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Spanish Council of State and the Prime minis ter to the Constitutional Court resulted in the predictable cancellation of the laws that threatened the national sovereignty. The resolution mentions the second article of the Spanish Constitution which contradicts the law itself as a participative process on independence is not possible because the national sovereignty is for the whole of the Spanish population (Consejo de Estado, 2017;Tribunal Constitucional, 2017). It also states, that the autonomous government does not have powers to apply the laws related to a participative approach on the independence of the region, nor can create a dual legality which surpasses the limits of powers that autonomous government have. The applicability 155th constitutional article by the pro-constitutional political parties to take over the Catalan government which was not obeying to the legal resolutions of the Constitutional Court.
5.2. What blockages to a solution for Spain and Catalonia that are created by these inter- locked legitimisations can be identified?
5.2.1 155th Article Application in the Senate and the Discourses.
Article 155 “1. If an Autonomous Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way seriously prejudicing the general interests of Spain, the Government, after lodging a complaint with the President of the Autonomous Community and failing to receive satisfaction therefore, may, following approval granted by an absolute majority of the Senate, take the measures necessary in order to compel the latter forcibly to meet said obligations, or in order to protect the above-mentioned general interests. 2. With a view to implementing the measures provided in the foregoing clause, the Government may issue instructions to all the authorities of the Autonomous Communities” (C.E., 1978, art 155)
In this section I will first analyse the position of the Spanish state, and later return to the Catalan position. Rajoy gave this speech at the Senate, as it was shown as a ‘Reason of State’ and aime d to prove unity within the constitutional side with the support of the main party in the opposition PSOE. To justify the appliance of the 155th article Rajoy, Spanish prime minis ter from PP at that time, mentions the illegalities committed by the Catalan Government and ignored the resolutions of the Constitutional Court. He also states the modifications and alterations of the parliamentary sessions such as the Government Control session which was suspended and thus violating democratic procedures in order to approve the Law of Juridical Transition and of the Foundation of the Republic. Rajoy blamed the current parties who form a majority in the
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autonomous parliament for an authoritarian and anti-democratic handling of the rules of procedure of the house. He asks rhetorically what would happen if such an illega lity was made in the Spanish institutions, a breach of the parliamentary rules. He tries to characterize the fact that if that happened most of the Spanish public opinion would be hesitant to that fact and almost forced elections would happen, however when this breach of legality was made in Catalonia the public opinion in Catalonia did not change that much as they ran for the elections promising certain disobedience. According to Rajoy, violating the rule of law, disregards social cohabitation and ignores the rights of people protected by the law, which brings upon legal consequences. Therefore, the article has to apply to enable restoration of the rule of law, Rajoy wonders rhetorically what other European countries would have done to a similar scenario. How would other European countries have faced the challenge, stating that the protection of European democracies would have reacted in a simila r approach to the one taken in Spain? 155th article is protected by the constitutional law that has been passed by a democratic process, which was result of a dialogue. He states that the article could have been applied before as the Catalan Government broke legality before, however they were still hopeful to a change in the Catalan government attitude. He mentions the lack of seriousness of Carles Puigdemo nt, president of the Catalan government, when declaring independence and was given the chance to retract. Rajoy stated that the only dialogue suggested to him by the Catalan government was negotiating terms of referendum or independence and he could not accept that (Diario de Sesiones del Senado, 2017, pp. 2-10).
Rajoy also mentions that the unilateral independence process will not have foreign support because it is against rule of law, democracy and other fundamental values of the European Union. Most EU countries would protect themselves in a direct threat of secession and have not supported the independence process as countries in the EU have a normative position of supporting Rule of Law and would not allow a similar scenario in their own country. However, it is worth mentioning the reasons given by the International Court of Justice (ICJ) which answers in a neutral tone when Serbia asked if the Unilateral Declaration of Independence of Kosovo is contrary to international law as there were attempts of previous negotiation and there was no use of violence and it was democratic. This princip le is similar to the ones defended by the relevant parties and civil society organisations in order to pursue the unilateral approach on Independence. Even though Spain does not recognise Kosovo, most of the European countries do. The particularity of Kosovo compared to Catalonia is very differe nt, but the princip les given by the ICJ answer are the ones attempted to be applied by Catalan secessionist parties.
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From this understanding it would not collide with the International Law and thus leaving a door open for international recognition (International Court of Justice, 2010). The submissions of Serbia against the ICJ considered that Kosovo exercised the right internally as part of the people of the Serbian State (Summmers, 2013, p. 237). Extrapolating this fact the Catalan people exercise their democratic power as part of the Spanish State as the Spanish State is the one that provides them with citizenship and a rule of law to any citizen in Spain and therefore in Catalonia.
The 155th article was applied with the support of a huge majority in the Senate as for the largest four parties only Podemos did not vote in favour. The unity of the Spanish Courts, Parliame nt and consequently a wide majority of the Spanish population to the application of the 155th article contrasts with the division in Catalonia. The concept brought by Habermas that the political culture of a country is crystallised around the interpretation of its constitution is adequate to understand this unity. Hereby the reticence of the major political forces in Spain regarding any type of bargain in terms of territoriality issues as it would be self-determina tio n or anything that could threaten nationa l sovereignty. Nor would a hypothetical reform of the Spanish Constitution allow any sort of chance for secession. Habermas also uses this concept in a more humanistic sense appealing to moral and ethical logics in the constitution to substitute nationa lis m in the State’s nation building. Defending the constitutional and democratic principles of the nation instead of a dogmatic defence of the nation. This argument of what type of patriotism to achieve would be entailed in the discourse given by Mariano Rajoy was given as a statesman as it had the support of the main party in the opposition PSOE. However, this appliance of constitutional patriotism is weaker when the constitution and the legal interpretations of the courts of justice entail a strong territorial-unity model of the nation which is very difficult to distinguish from nationalism. Additionally, Habermas assumes the problems that this concept can cause “[a] constitutional patriotism" and such interpretations can take the place originally occupied by nationalism. This notion of constitutional patriotism appears to many observers to represent too weak a bond to hold together complex societies” (Habermas, 1998, p. 118). Bossacoma also argues that ‘Constitutional Patriotism’ of Habermas has been used as a tool for oppression by the Spanish nationalism, as it reinforces previous nationalism. Liberal states which can be neutral in themes such as religion, tend to not be neutral regarding nationality (Bossacoma, 2014, p. 132) as he argues for a more politically and nationally decentralised states.
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Ciudadanos representative criticises Mariano Rajoy and PSOE because they have been avoiding the problem in Catalonia for an extended period of time and now the problem has escalated. Subsequently, indoctrination in schools and TV are allowed and conceding them benefits due to the parliamentary pacts with sub-nationalist parties that now advocate for secession (Diario de Sesiones del Senado, 2017, p. 14). Futhermore, Catalan and Basque nationalist parties have had bargaining power as they were crucial to form majority in the Spanish Parliament when neither the left nor the right wing forces could achieve it themselves.
This approach arguably as one of the most conservative Spanish constitutionalism falls under Schmitt conception of the weakness liberal constitutional democracies, which allow mechanisms within the state to further what he describes as “enemies of the state” (Schmitt, The Concept of The Political, 1976). Liberal democracies could accept and tolerate parties that run against its basis and its constitution. Part of Rajoy’s discourse in the senate could be summar ised in his affirmation “We don’t have to protect the Catalans of what some call Spanish Imperia lism but from the minority who appropriates history and institutions which belong to the whole civil society” (Diario de Sesiones del Senado, 2017, p. 9). He is treating the Autonomous Government of Catalonia as an internal enemy in Schmitt’s rhetoric. In these terms the attempt of Rajoy placing a discourse of constitution against anti-constitutionality strongly justifies an almost forced appliance of the exceptional measures of the 155th article to save the State’s correct institutional procedures against the ille ga l misdoings of the Catalan Government. Rajoy notes that the threat to Catalonia is not 155th article however their government’s attitude whereby Rajoy protects the Catalan people who do not favour independence and Spanish nation from chaos.
If the pursuit of an idea such as Catalan independence is illegal by all means, there is some contradiction in the Spanish Constitution when it comes to secession. If secession is not compatible with the Spanish Constitution, why political parties whose intentions are to pursue that secession are able to present themselves at elections? The ideological freedom and political plurality are protected by the articles 6 and 16 of the constitution with the only limitation of the respect to law and the constitution itself (C.E., 1978, art. 6, 16).
Thus, the idea of outlawing parties has been raised by certain parties of the most conservative sectors such as the recent far-right party VOX (VOX Grupo Parlamentario, 2020). Outlawing parties has precedent in the Spanish as it happened before with the Basque Independence movement due to its ties to the terrorist group ETA. Forbidding political parties with such
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support for its ideological reasons does not seem feasible and considering the constitution allows freedom of ideology it could even be interpreted as not constitutional and/or undemocratic. On the other hand, parties and part of civil society embodying ideals without legal mechanisms to be pursued by legal means due to it being contrary to the constitutio n locks the problem in an absurd contradiction bringing a constant perpetuation of this politic a l instability. Thus the ability to declare exception as stated by Schmitt, considers the form of constitutional exception weaker but making some sort of justification for breaking the legality from the state which he considers transitional to confront those who already have broken it. (Schmitt, 2005, p. xlii). Although constitutional exception was applied and the legal authorit y and powers of the Autonomous Government were removed, it required a negotiation between the two largest Spanish parties; PP and PSOE through a parliamentary process. According to Carl Schmitt’s critique of the liberal democratic state, it is one of its main weaknesses as such a threat to the nation is subject to political interests and legal constraints (Schmitt, 1976). The clearest example in this case would be the cultural repression of Franco’s dictatorship, which did not allow any political disobedience at the time and thus was more effective to solve the issue of Catalan nationalism at the time. However, it is uncertain if such repression is effec tive in the long-term as the Catalan Identity was strengthened after Franco’s Dictatorship (Keating, 1996, p. 120).
ERC speaker Mireia Cortès Gès pronounced a discourse where she positioned herself against the appliance of the article. She mentioned the sociological and political differences between regions. Their wish to organize themselves at a higher degree of decentralisation as the decisions taken in Catalonia should not come from central Spain. She mentio ns the corruption in the People’s Party and in the Spanish state. They advocate good relationship with Spain against threats and repression of the 155th article. (Diario de Sesiones del Senado, 2017, pp. 17-19). Her discourse entails a certain mistreatment suffered by Catalan nationalism and independence forces under the Spanish legal framework. Additionally, she notes complains that correlation of forces is one-sided between both nationalisms and both governments as the Spanish authorities are beyond regional ones such as the Catalan. This power disparity entails a certain degree of oppression not only direct as the 155th article as in some cases can be passive in a liberal democracy such as fiscal plunder, lack of investment, institutional cornering, cultura l residualisation, lack of national recognition. Hence, the dominant nation in the state often has a tendency to be intolerant of a full development of the non-dominant nationalities (Bossacoma, 2014, p. 59).
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The 155th article of the Spanish Constitution was used to suspend the autonomous government, however normality was restored and Rajoy called for Catalan elections on the 21st of December of 2017 in which the pro-independence parties gained majority once again (El País, 2017) (Presidencia de Gobierno , 2017). Therefore, the assumption of an abuse of the 155th article would not be strong in this sense as it only served to guarantee territoriality and legal order and did not impose a ruling nor went further. As the article does not set limits to the actions other than the ‘general interest’ and the agreement of the majority of the senate, there was some queries about what effects and actions could have been taken as there was no precedent. The implementation of the article proved to be effective to stop the threat of having a parallel legality in the Catalan institutions and also to ratify who ultimately has the power and the real ‘sovereignty’ as it was in the Spanish Parliaments and in the Spanish Government where the conditions of the exception were decided. “Hobbesian understanding of natural law would base Schmitt thoughts on his understanding of the ‘State’ and definition of ‘sovereignty’ saying that it is the essence of sovereignty both to decide what is an exception and to make the decisions appropriate to that exception” (Schmitt, 2005, p. xlii).
The intervention of the Catalan Autonomy did not assume a control of the Catalan public television or an intervention of the Catalan education system and the possible indoctrination of Catalan nationalism through different paths. (Boletín Oficial del Estado (Spanish Officia l Gazette), 2017). Reasons for this could be the bargain in the application of the 155th article as the PSOE had a different understanding of the problem than the PP and bargained to apply the article it in a softer form to avoid a harsher confrontation with secessionist forces.
5.2.2 ‘Law of Juridica l Transitio n and Foundation of the Republic' discourses in the Catalan Parliame nt
The 7th of August of 2017 the debate regarding the ‘Law of juridical transition and foundation of the Republic’ (Diari Oficial de la Generalitat de Catalunya, 2017) took place in the Catalan Parliame nt. It was before the ille ga l referendum of the 1 st of October but the law to regulate this referendum was already suspended by the Constitutional Court and this other law about the Catalan legal framework was going to be evidently suspended by the Spanish courts once approved.
As the representative of the PP in Catalonia, Xavier Garcia Albiol, opposed the above mentioned law in the parliament and described it as antidemocratic and authoritarian. He defended that pro-independence parties promote hate against Spain. Majority in the parlia me nt
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does not mean majority in the streets, mentio ning this as in number of votes the parties purely pro-independence was just below 50 percent. Albiol argued that what the Catalan Government was doing did not have any value because they simply do not have the capability to expel the Spanish State from Catalonia. “You can’t break Spain because you neither have the popular support nor the international consideration or legal reason” (Parlament de Catalunya, 2017, pp. 110-12).
When mentioning that the Catalan Government does not have the capability to fulfil its process of independence Albiol also enters in the Schmitt’s dialectics but as the ultimate power to declare exception who proves to be the real sovereign is the Spanish State. ‘A state is sovereign only if it can both maintain law and order internally and protect its borders against external threats’. (Habermas, 1998, p. 118). Even if the Catalan Government considers themselves a state, this state would not be sovereign if they could not enforce such policy. It must be capable of prevailing over all competing powers within its borders and of asserting itself in the international arena as a competitor with equal standing (Habermas, 1998, p. 108). When mentioning the necessary requirements for a hypothetical independence Albiol’s discourse states two general conditions; internal and external. Internal discusses popular support whereby external is the international recognition as well as the legal reason which depends on the Spanish State. As discussed in theory of self-determination the external aspects tend to be more conflictive (Summmers, 2013) . On the one hand, a parallel legality which was being attempted could solve the legal reason if there are the mechanisms to enforce it. International recognit io n is something that Catalan parties have been working on without fruitful results as no-other nation state recognised the Catalan declaration of independence.
For Podemos representative in the Senate, the mere application of 155th represents a failure of the politica l and territorial model. Podemos argues that the People’s Party is pretending to win by the means of force as they could not win by the means of voting in Catalonia (Diario de Sesiones del Senado, 2017). Additionally, the application of the 155th article challenges the recognition of the political status of Autonomous Community as historical regions with greater rights and seeing the means of the current rule of law as contrary to the democratic force.
Moving on to the Catalan Government position, in the same debate the parties forming the Catalan Government defended the law and the pro-independence discourse. Jordi Orobitg i Solé (ERC) stated that in his intervention Albiol (PP) did not speak about the law but rather gave a generalist discourse. Considering the total rejection Albiol’s parliamentary group has
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towards the law and considering the legality issues makes sense that his discourse does not analyse in depth the law as it denies the valid ity of it. Orobitg i Solé stated that the law is made to give back the tools to the Catalan people to decide for itself. The law is not the legal framework of Catalonia which will be decided later but it will be the legal framework during the transitio n period. According to him the law was going to be the legal status of Catalonia after the Referendum, at some point mentio ning as well that it will not be an easy task (Parlament de Catalunya, 2017, pp. 113-115) which assumes the difficulties they will have to apply it. However, the discourse lacks a specific defense of the law in front of the possible responses of the Spanish State and how they will enforce this new ‘Catalan Legal Framework’. Perhaps the intention of the Catalan government aimed to force a negotiation overstepping the mark. As they expect the Spanish State does not intend to damage its image by applying an authoritarian rule on Catalonia which could foster foreign mediatio n. Meanwhile, mainta in ing the people mobilised and the social support as it is necessary to keep the tension to achieve a stronger position in a future hypothetical negotiation.
Orobitg i Solé mentioned the fact that Catalonia is one of the few societies that, after having voted and passed a rule, this very rule is not being applied. This refers to the Statute of Autonomy of 2006 ratified by the Constitutional Court which rejected some articles. This Statute of Autonomy was passed in both the Catalan and the Spanish Parliaments and a referendum was held in Catalonia and won. Thus the Spanish legal framework constrains the new Statute of Autonomy and for pro-independence parties this is an anomaly that represents a big part of the problems and ratifies the idea that Catalonia cannot fit under the Spanish institutional legality. It is considered that democratic process itself can provide the necessary guarantees for the social integration of differentiated societies (Habermas, 1998, p. 133). However, in this case considering that following the democratic procedure a Catalan Statute of Autonomy could not be changed, the pro-independence discourses doubt about the democratic legitimacy of the Spanish courts as they are used to revise the changes and therefore block the democratic will of the people, as they are biased with their interpretations and judgements about the Spanish Constitution.
Furthermore, Orobitg mentions the possible effects of independence and the relation between states in this possible scenario stating that some issues such as nationality issues will have to be discussed with the Spanish State (Parlament de Catalunya, 2017, pp. 113-115). Although as it is obvious the Spanish State showed its negation to negotiate any terms as it is negating the whole validity if the process thus any hypothetical agreement in the future impossible task.
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However, as this law transcends into a republic, it gives Catalonia the means to be a state and it is assumed that it will be enforced although not specifying how then a negotiation of equals could. He justifies the law on the new legal framework as the popular mandate as they assumed the elections as a plebiscite.
As also mentioned by Rajoy above when applying the 155th article, he parliament of Catalonia declared a sort of exception when not listening to the mandate and judicial resolutions of the court but instead to what the parties in the Catalan government called the popular mandate which was the result of the illegal referendum and the majority of the parliament. Carl Schmitt suggested that in logic if we assume that the political subject of Catalan Autonomous Community behaved as if it was state where its ‘enemy’ was the Spanish state and its legal constraints for the Catalan will. Considering the whole ‘Catalan process’ is an ‘exception’ that subverted legality for a major moral reason as it is the popular mandate and the rights of the Catalan people. By this princip le Catalan government unilateral approach could also fall into Schmitt’s logic. The main objection to this argument would be the political realism, as this declaration could not be enforced as the Spanish State had the mechanisms to dissemble the independence process and the proved to be in power of the real sovereignty. However, in the hypothetical case that the Spanish State would not find the mechanisms to enforce its sovereignty against the acts of the parliament, the exception declared in the parliament which broke the current statute of Autonomy and the elements present in the rule of law for the assumption of the power in name of a ‘popular’ democratic mandate.
Miquel Iceta leader of the affiliated party (PSC) to the Spanish Socialist Workers Party in Catalonia also was reticent to the law but in a softer tone than the PP representative by questioning the current Spanish autonomy model contrary to the Socialist Party in Spain. However, he remarks the obligation to fulfil the constitutional requirements and its judgements. This law of transitio n according to Iceta aims to deny the Spanish Constitutio n and the current Statute of Autonomy. Iceta wonders if this attempt to force the people to participate in the illega l referendum, justifying the validity of the referendum in this legal framework and threat that if implemented would be binding. A sort of threat as the result of the referendum will be binding according to this law. Or if they already know that the referendum is not going to happen and they just want to publish in the Official Gazette of the Parliame nt and the Offic ia l Newsletter for the short span of time until suspension. He mentions a contradiction in the law as the electoral regime needs at least a two thirds majority in the Parliame nt as in certain cases it is necessary to acquire enough majority to avoid one half of the parliament imposing its view
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on the other half, as it is how the pro-independence parties are utilis ing this law (Parlament de Catalunya, 2017, pp. 124-126).
5.3 What solutions can be perceived by looking beyond the tacit assumptions built into the antagonistic positions taken?
Two perspectives are most significant in relation to the fundamental tensions within the law of self-determination: the state-based and people-based perspectives. The state-based approach is undoubtedly the most popular interpretation of the division. This reflects the dominant role of states in international law and their essential interest in territorial integrity and domesticating self-determination. However, the division will often neatly correspond to the application of sovereignty and territorial integrity in self-determination, appearing to create an arbitrary division in the right, which undermines its legitimacy” (Summmers, 2013, pp. 247-248). There seems a common agreement in the perspectives of international law and realism about the normative power that the state has pursuing the common interest of it. Thus according to realist approach is the state has to be the tool to be used when pursuing common interest. Such views are often associated with the ‘raisond’état’ (reason of state) tradition “the State is in itself an ethical force and a high moral good” (Donnelly, 2000, p. 169). Summers also brings an interesting consideration when mentions the fact of an arbitrary division the internal sub- national unit that has a claim for self-determination and a contradiction in the terms as any sub- national unit of a state could claim this right to the extent.
Since the revocation of the 2006 Statute of Autonomy as mentioned in the introduction the Spanish Socialist party did not have a clear agenda on the issue of territoriality in Catalonia. As mentioned beforehand the forces of the left spectrum beforehand have a rather ambiguo us view when it comes to their ideal on the territoria l model of Spain and PSOE supported the PP in the application of 155th article as it was a ‘reason of state’ although years before supported and voted for a new Statute in Catalonia which the Constitutional Court denied. Miquel Iceta PSC leader in a polemic interview stated that a 65% of the population could be a valid majority for a referendum as a democratic Spain should find mechanisms if it is the case. He also asked the Catalan pro-secession parties to wait for the Spanish public opinion to change in order to have Constitutional changes which would allow them to proceed with their sovereignty claims. Even within the Spanish Socialist party this is not an accepted opinion as it would be contrary
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to the Spanish Constitution and the current legality in Spain he had to clarify in a tweet later (La Vanguardia, 2019).
In his Twitter he clarifies that he defends dialogue within legal terms and that he is a federalist. Therefore he argues for a new statute that would fit inside a federal state or one built on autonomies (Iceta, 2019). From Iceta’s words it can be understood that the general Spanish public opinion might be subject to change to a greater acceptance of the Catalan national identity within Spain and its rights as a process that takes time. A constitutional reform needs two thirds of the Spanish Parliament and does not seem probable in the short run. A reform of the Statute of Autonomy as the one of 2006 would be a short-term possibility but this would suggest referring to a possible outdated 2006’s paradigm (in contrast to the 2017 unilateral independence approach).
Podemos which at some points has defended a referendum as well as also ‘third way’ positions, has had internal discrepancies and certain ambiguity during the whole ‘Catalan Process’ as they agree with the critique of the pro-independence parties to the Spanish Institutions but at the same time they do not think these arguments are enough for a unilateral approach on independence. Joan Coscubiela Conesa, Podemos affiliate party in Catalonia ‘En Comú Podem’ representative (Parlament de Catalunya, 2017, p. 128), states in the debate at the Catalan Parliament part of the problem is the inaction of PP, its negation to a recognition of self-determination, the usage of abuse of power by the Spanish authorities as dirty war towards politica l enemies. Renouncing to dialogue and politics and just using repression to confront the problem has put Catalonia in a very difficult situation. Coscubiela states that all the actions have been in the courts and not in the parliament. According to him the Spanish Government is reticent to negotiate and confront the problem as they hide behind courts and the judicial system. He states that so far now the pro-independence parties had won the ideological democratic battle. But with the unilateral approach to independence and the biased use of the Catalan institutions is a historical error and irresponsible. He mentions that unilateralism is not compatible with democracy and their moral authority they had in democratic terms was lost due to this unilateral approach.
Coscubiela mentions Norberto Bobbio to state that the ends do not justify the means, a legitimate cause can be delegitimised by the means used. Coscubiela hat in an interview to Gabriel Rufian, ERC representative in the Spanish parliament, when he was asked how they are going to enforce the “mandate” and the transitional legal framework adopted by the Catalan
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Government he answered “I don’t know” and thus he blamed the pro-independence leaders to deceive their voters as they were promising unachievable ends. He agrees that the Spanish Transition model achieved in 1978 is outdated and there is a need for a constituent process. Mentions the need for a multinational understanding of the state and a shared sovereignty and the need to update the constitution as the sovereignty is already shared with the EU and there is no change in the constitution in those terms. Advocates reinterpretation of the constitutio n less territorial and centralist. (Parlament de Catalunya, 2017, pp. 127-129)
Historically forces in the left spectrum have debated around the ‘national question’ and self- determination, they had ambiguity regarding a position and often prioritising the ends than in the means. For instance, Lenin defended the democratic right of peoples and nations but at the same time advocated for a union of the proletariat which conflicted independence movements at the time (Alan & Woods, 2000). Austromarxism theorised about the multinational state and made a very clear distinction of ‘nation’ and ‘state’ leaving the state as for the legal framework applied under a territory and argued that the principle of nationality does not imply a territorial issue as nations should be able to coexist under the same legal framework. Otto Bauer makes the analogy with different religions being practiced in the same city “It would very often be the case that two or more nations would construct their own national administrative bodies within the one city, erect national educational institutions side by side, but undisturbed by one another” (Bauer, 2000, p. 281). Contrary to the argument exposed above of outlawing parties with ideologies that challenge the constitution through a constitutional reform would be the construction on the Spanish nation and its sovereignty which has an intrinsically territorial concept of the Spanish nation and its territory but de-territorialises the other “nationalities ” (C.E., 1978, art. 2).
In the case of Catalonia, as previously mentioned, the Autonomous Community system provides a great degree of self-governance and thus to pursue the Catalan and Spanish identit ies and nationalities within Spain. Spain as an institutio na l divis io n and dual administrative frameworks would not be possible in a general view as the Catalan and Spanish nationalities are interlinked both in the daily life, such as schools. The culture is rather similar as shown in surveys during the Spanish Transition between 1979 and 1988. Most people considered themselves both Spanish and Catalan rather than only Catalan or Spanish as they are not exclusive identities (Keating, 1996, pp. 128-135). However, an approach territoriality from a different perspective and not focus the agenda in the territorial debate as a sort of border division. Perhaps that perspective could open a door for federalism which historically has been
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considered by socialist Catalan forces. However, the difference between federalism and the current model is not that clear as autonomous communities have political and administrative powers as stated before beyond many other federative states. The main difference could be consider the share of sovereignty as theorised by federalist authors the in a federal state the sovereignty is shared between the federation and the state (Marón, 2014, pp. 256-257) in this terms the autonomous communities do not have any power in terms of sovereignty as stated in the Constitution. Therefore, federalism has historically been an alternative for the forces of the left in Catalonia and also in the rest of Spain, Catalan nationalist forces have seen it as a way to downgrade Catalonia to the same status as other regions (Keating, 1996, p. 128).
On the one hand, the nature of the Catalan nationalism/nation to pursue a creation of a ne w state would have to cease which it is hard to know and to what extent it is intrinsic to Catalan nationalism. On the other hand, the model of the Spanish State and its relation to the Autonomous Community of Catalonia would have to be reconsidered in terms of nationa l identity as a mutual recognition between equals in national terms as in territorial terms is not possible
Karl Renner assumed this imperial behaviour of the state “The modern state replaces this principle with the territorial principle: if you live in my territory, you are subject to my dominatio n, my law and my language” (Renner, 1899, p. 103). Renner supported decentralised models as “Legislation can be centralist and administration decentralized” (Renner, 1899, pp. 107-108), which would be similar to a federal model or the current Autonomous Communities model. There are levels of de-centralisation and the levels are interlinked with the nationality question and level of centralisation. Thus, difficult to think that there will not be a conflict of interest between the different nationalities due to the power correlation as the Catalan institutions have to obey the Spanish legal framework.
This perception of the state brought by the Austromarxis ts Renner and Bauer, within the context of the Austrian nation supports a “plurinalitional” state and a broader sense of the state which does not need a specific nation to ratify itself. As in some arguments of Spanish leftist parties who disagree with certain behaviours of the Spanish State may not see independence as the main choice to solve the problems but rather aim for a reform in the Spanish State or a reform which could solve the national question in Spain. This could lead reconstruction of the Spanish nationalism which is able to embody the core of the Catalan nationalism. However,
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this is not an easy process as Spain is seen as the historical “other” “enemy” and the cultural assimilation and the expansionism of a Spanish State.
For Bossacoma contrary to this federalist and socialist views that try to separate nationality and territoriality, liberal states have the tendency to impose a certain nationalism (Bossacoma, 2014, p. 133). He problematises the historical formation of the Spanish Constitution which is often overlooked rather than discussing a federative model. For him the Spanish constitution it is not an ideal constitution due to its weak recognition of fundamental rights and was elaborated as the continuation process of a dictatorship. Thus, the military pressures, the two attempts of coup d’etat at the time and the threats from terrorist groups of extreme ideologies played an important role on its elaboration. Despite having juridical guarantees as it was voted by the Spanish population during the Transition in 1978, has the ability to change completely through democratic terms. Bossacoma uses Manuel Aragon’s based on a Kelsenian state analysis to explain that the right of secession is not compatible with the constitution itself nor with the state. If the State’s territory can’t break itself apart, breaking it would be conceived as the end of the state. Compared to the constitution of Quebec to the Spanish constitution he argues that the Spanish Constitution is more rigid and doubts about its moral legitimation. The Spanish Constitution is entailed in a written document while Canada constitution is written in two texts and contains non-written democratic principles making it more flexible and he considers that the Constitutional Court in Spain forgets that a constitution should be interpreted in virtue of democratic principles (Bossacoma, 2014, pp. 287-291). In Quebec the referendum was mutually agreed, (Pavković, 2003) the government and national parties of Canada and their institutions seem less protective in terms of territoriality as in the Spanish state. Spanish Imperial idiosyncrasy and the transition regime as mentioned by Coscubiela (Podemos) and the pro-Independence representatives; the so-called sociological Francoism among part of the Spanish population which according to Iceta (PSC) should dissipate in time and that is why is worth waiting until the political paradigm and a mutual coexistence would be easier and the territoria l system would fit everyone better. The Spanish society has transitioned to a democracy from an autocratic regime without defeating of it, therefore there are traces in the social behaviour and politics which are still influenced by it (Maestre, 2013). The assumptio n of having to wait for a change in the Spanish public opinion can be considered a defeat of Catalan nationalism as it regards Catalonia as a lower political subject and dependent on the historical ‘other’ without the right to decide its future by itself.
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5.3.1 Questioning Discourses Given in Public
The whole unilateral approach on independence was questioned as mentioned in the parliaments by opposition leaders which knew that it was doomed to fail. There was the suspicion that even within Catalan Government doubts about the viability of it and the possible consequences were arising. However the discourses of the pro-independence and their actions were serious and the dimension of the threat was not clear as there was no precedent to such disobedience to the Constitutional Court. The Spanish Government Delegate in Catalonia Enric Millo (PP) who was responsible for the Catalan Institutions when the 155th was applied wrote a book where he admitted pressures of Oriol Junqueras, (ERC) vice-president of the Catalan Government to try to convince the most conservative deputies of the old CDC which at the time were in the same parliamentary group JxSí as him to vote against their own law of juridica l transition and the law that allowed the referendum (La Vanguardia, 2020). This could confirm that doubts were arising in the Catalan Government as they knew the possible legal consequences. With all the civil society mobilised any fragmentation or doubt on the unilateralism would have broken it and could have seen as a betrayal and a deception. Junqueras himself had the ability to vote against his own law and to suggest to the deputies of his group to do so as he could be seen as a traitor to the Catalan Process. Therefore, to some extent a conscious deception to the Catalan society was an attempt to show a security on their policymaking which was proved to be very fragile.
Millo also documented conversations he had with Puigdemont months before the illega l Referendum took place. In those conversations that appear in Millo’s book, it is mentioned a territoria l reform within constitutional terms elaborated by neutral experts and afterwards voted in a referendum, however Millo and Puigdemont ultimately did not come to an agreement. Despite not specifying which type of reform this would be, it seems to be a revision of the failed 2006 Statute reform making it more precise and correct to the eyes of the constitutio nal court. However, due to the belligerent context of the society the negotiation were not fruitful.
This contrasts Marta Rovira’s (ERC) views from an interview on 29th December 2016, where she states that the future law that was going to be made by the Autonomous Government to facilitate a legal referendum and a possible Unilateral Declaration of Independence was unassailable by the Constitutional Court. The arguments were that a transition from a Spanish based Legal framework to a Catalan based Legal framework cannot be judged by the Spanish Based legal framework. Further, if the law was suspended by the Constitutional Court, she
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replied that they will use all the democratic means as they have a democratic and legal mandate to do this. Rovira displayed ambiguity of legality by not recognising authority of the Constitutional Court as foreshadowing the disobedience of the Catalan government in the future.
Rovira in her declaration gives a big weight to democracy to legitimize the actions and laws of the Catalan Parliament (EuropaPress, 2016). However, that concept of democracy is debatable as the Autonomous government does not have any recognition of sovereignty nor can enforc e its legislation as the task for enforcing such legislation ultimately depends on the executive and judicia l branches of the Spanish State. Even attempts with the Catalan police is dependent on the Catalan government but ultimately has to obey the resolution of higher courts in Spain. Casually some articles in the “Law of juridical transition and foundation of the Republic ” prepared by the Catalan autonomous government with the only difference of considering Catalonia the subject instead of Spain as many of the articles were simply copied. This would be perhaps to exemplify that laws are not valid by themselves as moral but accepted in the society through the means of force.
5.3.2 Discussion Regarding Separation of Powers
The doubt of a truly separation of powers in the Spanish State is questioned several times by the forces in the Catalan secession movement and by Podemos as seen in the discourses. Authorities of the Catalan Government have complained of leaked messages by Spanish politicians regarding the control of Justice Courts as well as the leaks of private meetings were there was suspicion of dirty practices against Catalan political leaders (El Español, 2018). The Catalan Government and sectors of the Catalan society do not trust the Spanish State as they consider Spain is not offering democratic guarantees and a sort of dirty war and repression against independence political movement is also carried out. The Catalan authorities state that a rule of law and the political freedom are not impartial, nor the independence of the judicia l branch of the State, since all of them are politicised by the two main traditional parties in Spain: PP and PSOE. It could be defended that certain state corruption to confront the threat of the Catalan challenge could even be considered natural. “This fragmentation occurred under the impact of such ideas as democratic legitimacy; the division of power; the notion that power must be checked by power, which is a central tenet of constitutional liberalism” (Schmitt, 2005). As Schmitt mentions the legal constraints that entail the ethics of liberal democracies. The fact that the Spanish State has to face a breach of legality with the constraints of legality
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is part of the discussion. At exceptional points the state itself can be beyond any moral princip le in order to guarantee the defense against future threats (Donnelly, 2000, pp. 169-171). Therefore it might be considered logical that in the Spanish State and its authorities are not totally impartial in the Catalan affair, as the Catalan Independence is an intrins ic threat which conspires against the state itself.
6. Conclusio n
Legal exception was declared in its constitutional form through the 155th article. The 155th article could have been applied in an even more coercing form against the Catalan autonomy and its government the need of parliamentary majority and the division of forces in within the parliamentary system make this constitutional form of exception weaker. As Schmitt stated “All law is situatio na l law." describing sovereignty as the one able to decide on the exception. Liberal democratic states when applied are not exactly the same as an ideal model and have tendencies to favour certain nationalisms and conflict with other interests.
Repression of a secession movement which threatens the basis of the state could legitimate in its legal constitutional forms and even considered logical. However, the repression of a secession movement which has adopted a disobedience standpoint is difficult to distinguish from the repression to the national identity and the politica l movement. The idiosyncrasy of Catalan nationalism might be expected to attempt to secede with almost any form of Spanish state as the Catalan Nationalism will never be satisfied within it. Hence, a theoretica l justification to have a constant legal “exception” to diminish a movement that is a constant threat to the basis of the state. The understanding of the Catalan nationalist forces arguing the democratic legitimacy of the Spanish State as they perceive a constant oppression towards them. They question the Spanish transition’s discourse of 1978 which continues a sort of endemic oppression towards the peripheral sub-nationalisms in Spain as a continuation of francoist homogeneity. Pro-independence parties argued for legitimising their disobedience and attempts to pursue independence by the argument of not only the legal impossibility but also the oppression towards the national identity with the use of corrupted practices and using the force of the state beyond the constitutional practice and complain about the unjust treatment towards the Catalan nationality by legal and passive terms.
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While some pro-constitutional speakers complain about the advantages given to some regions to promote their nationalism that developed to secessionism. The pro-Catalan discourse apparently does not see time as a positive as there is an oppression and corruption that damages the identity of the Catalan nation and thus any changes that is not willing for the independence or makes a relevant advance in protecting the national identity is not valid to their ends. The more time under a Spanish State that promotes a unique Spanish nationalism the more the Catalan nationalist identity can be damaged maybe as other sub-nationalisms in Spain which have not been as protective with their identity and their force is residual compared to the Catalan. While progressive-leftist forces assume that society will develop enough to change the ‘Status Quo’ into one that has a better territorial fitting while the Autonomic state model although obsolete, can still hold a few more years until there is a paradigm for change which would break these interlocked positions. The question to which extent the Spanish State pursues a one-nation model against the multi-national nation model. As well as the question to which extent is Catalan nationalism and their political forces intrinsically secessionist and will pursue the attempt formation of a state are crucial to the development of the issue.
The performance of the Catalan Government was aiming to put as much pressure on Spain and to gain international recognition with the assumption that short-term was a battle lost as they had no means to inforce what they were doing. The referendum was able to be done with the help of the mobilised civil society. The attempts of the central government to stop the referendum by the means of force were not completely successful as Spanish police could only close few polling stations. The images of police repression spread to the international media were the ones that part of Catalan society wanted to show to the world were the ones with the Spanish police repressing a population that was just exercising the ‘no-right’ to vote (BBC, 2017).
It is worth mentioning that if the referendum had no validity as Spain has the legal mechanisms and real sovereignty, why the police attempted to stop it? Perhaps as the 155th article was not applied yet the Catalan authorities still had certain legal status, therefore applying the 155th article before could have been more productive for the Spanish State as they could have had control of the Catalan Government before the referendum. The Catalan authorities knew that due to the previous resolutions of the Constitutional Court the legal battle was lost. As stated many times by the Constitutional Court territoriality and sovereignty are a matter of the Spanish institutions and not the Catalan and the Statute of Autonomy reforms and power transfers will not negotiate in this terms. Therefore it raises the discussion about a constitutional reform by
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sectors of Catalan nationalism and progressive forces in Spain and Catalonia in the matter of territoriality which would need two thirds of the Spanish parliament, this does not seem feasible unless there is a change of paradigm in the Spanish public opinion which will not happen short- term. Internal reasons also conflict for the purpose of independence, the absence of a strong majority aiming for secession as well as the intertwined identities which are polarised due to the context of crisis and the of a particular territorial definition of the Catalan nation make a hypothetical independence unlikely. Spanish parties and their political opinion attains to the current legality and does not negotiate beyond those limits particularly in terms of sovereignty. This does not seem to change in the short term and the political tension will continue in the next years.
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