Framing the Court. Political Reactions to the Ruling on the Declaration of Sovereignty of the Catalan Parliament

This is a repository copy of Framing the Court. Political Reactions to the Ruling on the Declaration of Sovereignty of the Catalan Parliament. White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/89794/ Version: Accepted Version Article: Castillo Ortiz, P.J. (2015) Framing the Court. Political Reactions to the Ruling on the Declaration of Sovereignty of the Catalan Parliament. Hague Journal on the Rule of Law, 7 (1). pp. 27-47. ISSN 1876-4053 https://doi.org/10.1007/s40803-015-0002-x Reuse Unless indicated otherwise, fulltext items are protected by copyright with all rights reserved. The copyright exception in section 29 of the Copyright, Designs and Patents Act 1988 allows the making of a single copy solely for the purpose of non-commercial research or private study within the limits of fair dealing. The publisher or other rights-holder may allow further reproduction and re-use of this version - refer to the White Rose Research Online record for this item. Where records identify the publisher as the copyright holder, users can verify any specific terms of use on the publisher’s website. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing [email protected] including the URL of the record and the reason for the withdrawal request. [email protected] https://eprints.whiterose.ac.uk/ Framing the Court. Political Reactions to the Ruling on the Declaration of Sovereignty of the Catalan Parliament Abstract This article analyses the reactions by political actors to the ruling of the Spanish Constitutional Court on the Declaration of Sovereignty of the Catalan Parliament. It is suggested that political framings of the ruling can be classified into the legalist, attitudinal and institutional academic models of judicial behaviour. As will be shown, these models have a normative dimension, with implications for the ideal of the Rule of Law. These implications are skilfully captured and exploited by political actors as part of a wider battle for the framing of the ruling. The Rule of Law thus becomes politicised as a result of the tension around the judicialisation of the so-called Catalan ‘sovereignist process’. Key words Rule of Law – Spanish Constitutional Court – Catalonia- Framing Theory –Judicial Decision-Making 1 Presentation On 23 January 2013, the Catalan Parliament passed the ‘Declaration on the Sovereignty and right to decide of the people of Catalonia’. Amongst the ultimate aims of the Declaration was the holding of a referendum through which Catalan citizens could decide on the status of Catalonia vis-à-vis the Spanish State, including the option for independence. The Spanish Government, as well as the main Spanish political parties, opposed the content of the Declaration. Through the State’s Attorney, the Spanish Government filed an objection of unconstitutionality before the Constitutional Court, which on 26 March 2014 issued a ruling stating that the Declaration was contrary to the Spanish Constitution as long as it included the idea of ‘Catalan sovereignty’. The Court, however, also considered that the ‘right to decide’ of Catalan citizens could be considered constitutional if exercised in accordance with the Spanish constitutional system. Political reactions to the ruling were diverse, ranging from furious attacks against the Court to closed defences of the institution as guarantor of the constitutional framework and the Rule of Law. Such reactions will be studied in this article. Most literature on Judicial Politics focuses on courts’ decisions on merits, which are explained through different theories of decision-making. Although these theories will be used in this article as well, my focus is instead on political framings of the judicial outcome. As will be illustrated, beyond their neutralist, positivist use in academic research, theories of judicial decision-making have unavoidable normative implications related to the Rule of Law and the role of constitutional courts in a democratic society. With the aid of framing theory, this article explains how simplified versions of such theories are also 2 discursively mobilised by political actors for strategic purposes as rival narratives about the ruling with legitimating and de-legitimating effects. While parties opposing the referendum implied that the ruling was the result of a neutral application of the Constitution to the case, pro-referendum actors often accused the Court of being politically biased. My claim is that framings of the ruling depended on the gap between the preferences of politicians and the judicial outcome. Furthermore, in the context of the Catalan sovereignist process, these legalist and political framings had different implications in terms of the legitimacy of the Spanish Constitution to channel political conflict over the issues of self-determination and independence. The remainder of this article proceeds as follows. After this brief introduction, I will provide a description of the background of the case, briefly summarising the decentralised political organisation of the Spanish State as well as the role of the Constitutional Court in such a political structure. Then, I will explore my theoretical framework, which combines theories of judicial decision-making and framing theories in the study of political reactions to the rulings of courts. Subsequently, I will devote a few lines to explain the methodology and sources of the paper. In the next section, I will describe the most recent political events in Catalonia and the current scenario. After that, I will explore the very ruling of the Spanish Constitutional Court on the Declaration of Catalan Parliament from the perspectives of the legalist, attitudinal and institutional theories of judicial decision-making, presenting them as alternative narratives. Next, I will show how, depending on their preferences, political actors selected some of these different narratives as a framing strategy. I will finish with some conclusions about the case. 3 The role of the Constitutional Court in contemporary decentralised Spain After the death of the dictator Franco, the formerly repressed demands for self- government of the so-called ´historic nationalities’ -such as Catalonia or the Basque Country- flourished in Spain1. According to Hopkin, the country ‘embarked in 1977 on a progressive and profound decentralization of political and administrative functions affecting the whole of State’2. This process of decentralisation was made possible by the political agreements reached during the period of transition to democracy, which crystallised in the Spanish Constitution of 1978 (hereinafter ‘SC’). Article 2 SC states that the Constitution is based ‘on the indissoluble unity of the Spanish Nation’ but also that ‘it recognises and guarantees the right to self-government of the nationalities and regions of which it is composed’. Art.143 of the Constitution allows for the creation of Autonomous Communities, which shall enjoy self- government for the management of their interests (Art.137 SC) and have as their basic institutional rule a Statute of Autonomy (Art.147 SC). According to Aja and Colino, this constitutional framework ´displayed a great degree of flexibility and openness’3 and 1 Luis Moreno, ‘Decentralization in Spain’, in: 36 Regional Studies (2002), p. 399, at pp.399-400. Enric Martinez-Herrera, ‘From nation-building to building identification with political communities: Consequences of political decentralization in Spain, the Basque Country, Catalonia and Galicia’, in: 41 European Journal of Political Research (2002), p.421, at p.428. 2 Jonathan Hopkin, ‘Devolution and Party Politics in Britain and Spain’, in: 15 Party Politics (2009), p.179, at p.191. 3 Eliseo Aja and César Colino, ‘Multilevel structures, coordination and partisan politics in Spanish intergovernmental relations’, in: 12 Comparative European Politics (2014), p.444, at p.445. 4 permitted Autonomous Communities to have an active role in the process of devolution from which they were benefiting. The result has been a deep decentralisation of the political structure of the State, to the point that some authors speak about a process of federalisation of Spain4. The Constitutional Court has been considered of paramount importance in this process5. According to Shapiro, one of the explanations for the blooming of constitutional review is precisely political decentralisation, as ‘federalism required some institution to police its complex constitutional boundary arrangements’6. In Spain, the function of constitutional review is entrusted to an independent institution, a Constitutional Court inspired in the Kelsenian model that is currently dominant in continental Europe7. Together with other functions, most notably the defence of the constitutional rights of citizens, the Constitutional Court ensures the respect by legislation of the constitutional mandates, including those that delimit the respective competences of State level organs 4 Robert Agranoff and Juan Antonio Ramos Gallarín, ´Toward Federal Democracy in Spain: An Examination of Intergovernmental Relations’, in: 27 Publius (1997), p.1. Gemma Sala, ‘Federalism without Adjectives in Spain’, in: 44 Publius (2014), p.109. 5 Luis Moreno, ‘Federalization and Ethnoterritorial Concurrence in Spain’, in: 27 Publius (1997), p.65 at p.70. 6 Martin Shapiro, ‘The Success of Judicial Review and Democracy’, in Martin Shapiro and Alec Stone Sweet, On Law Politics and Judicialization, p.148, at

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