Catalonia collection
Constitutional erosion in Spain: the Catalan pro-independence disaster [1]
Writer: Núria González Campañá, member of GEDECO [2] College of Barcelona,
This weblog is a part of a collection on the home political implications and worldwide echoes of the independence bid in Catalonia. The collection is a collaboration between the Centre on Constitutional Change and the Institute for Comparative Federalism at EURAC Analysis in Bolzano/Bozen, Italy.
Spain will not be alien to the phenomenon of populist narratives and constitutional erosion. Though in all probability unnoticed by worldwide audiences, one of the crucial related examples of constitutional erosions that has taken place in Spain is the Catalan secessionist bid. On this weblog, I deal with two populists traits of the pro-independence motion from a constitutional legislation perspective: i.e., the intolerant interpretation of democracy and the disdain for the rule of legislation.
Intolerant interpretation of democracy
Over the previous decade, a pro-independence majority within the Catalan parliament has tried to arrange a referendum on independence. Polls have constantly urged {that a} majority of Catalans are in favour of being requested about independence. However surveys and electoral outcomes have been equally constant in displaying that Catalonia is break up in two halves in the case of secession. There isn’t a majority of residents (not to mention a transparent majority) in favour of independence.[3]
Catalan pro-independence leaders have made nice efforts to construct the case that organizing a referendum on secession is a query of democratic high quality. “Voting is regular in a traditional nation” or “that is about democracy” had been a few of the most repeated slogans. Nonetheless, only some democracies (e.g. Canada and the UK) have permitted a vote on the secession of part of the nation. Different constitutional democracies (e.g. US, Italy, Germany) have rejected the concept that one a part of the nation can set up a referendum on secession. Catalan pro-independence leaders had been arguably disingenuous in suggesting {that a} referendum on secession is “regular”. What’s extra worrisome, they assumed that democracy, understood as majority rule, ought to trump another authorized precept, just like the rule of legislation, respect for minorities, or federalism.
Democracy will not be solely about voting or concerning the needs of the bulk. Constitutional democracy means individuals deciding, however doing so in line with guidelines that may solely be modified following their very own modification process. Nonetheless, within the populist narrative of the Catalan pro-independence motion, a majoritarian idea of democratic legitimacy took prevalence over the rule of legislation, and the favored will was conceived as the one supply of energy. The implication was that ‘the individuals’ can’t be fallacious and due to this fact, leaders and parliaments ought to discover a solution to perform individuals’s aspirations, whatever the letter of the legislation.
The referendum grew to become an ethical objective, the one software to permit for the political expression of the individuals’s will. Oriol Junqueras, former Vice-President of the Catalan authorities, had insisted a number of occasions that “voting is a proper that prevails over any legislation” and that “we [Catalan government] will disobey the Spanish legal guidelines, however we are going to obey the mandate that now we have within the Catalan Parliament.”[4]. Catalan establishments additionally tried to discredit the Spanish constitutional framework. For example, the Decision of Catalan Parliament 1/XI, of 9 November 2015 established that the Catalan Parliament will not be topic to choices adopted by the “Spanish State”, particularly these coming from the Constitutional Court docket that in line with the Decision “lacks legitimacy and competence”.
This opposition between purported in style legitimacy and legality implies an intolerant model of democracy. The thought of the federal government of the individuals is taken actually and checks and balances on the favored will are rejected.
Furthermore, the triggering motivation behind a referendum on secession will not be democracy, however nationalism. In different phrases, as Carlos Closa argues, there is no such thing as a purpose why the democratic proper of 1 group to secede (Catalans) should prevail over the equally democratic rejection of this proper expressed by a majority of a wider demos (Spaniards). In different phrases, why is it extra “democratic” that solely Catalans, moderately than all Spaniards, determine the future of Catalonia and Spain?
The disdain for the Rule of Legislation and the judiciary because of the unrestricted interpretation of the favored will
Spanish constitutional authorized order doesn’t acknowledge the suitable of the inhabitants of an Autonomous Group to determine on the dismemberment of the nation. The Spanish Constitutional Court docket (SCC) (Judgments 42/2014 and 259/2015) has said that contemplating the Catalan individuals as sovereign is in opposition to Spanish nationwide sovereignty, which can’t be divided. Moreover, the Structure is predicated on the indissoluble unity of the Spanish Nation. Moreover, the central State holds unique competence over authorization for in style consultations by way of the holding of referendums (Artwork. 149.1 Spanish Structure). Thus, an Autonomous Group that enjoys self-government can’t unilaterally name a referendum on self-determination, as a result of sovereignty is barely reserved to the Spanish individuals as an entire. The SCC accepts that the so-called “proper to determine” is a official political aspiration. Nonetheless, since this aspiration is precluded by the prevailing constitutional framework, the Court docket argued that such aspiration needs to be channelled by way of a constitutional modification.
Regardless of the readability of the Court docket’s place, in September 2017 the pro-independence majority within the Catalan Parliament handed two legal guidelines: 19/2017, on a referendum on self-determination, and 20/2017, on the muse of the Republic. Each legal guidelines established that they prevailed over the Spanish Structure and the Catalan Statute of Autonomy, even after they failed to achieve the certified majorities required to amend the exact same Catalan Statute of Autonomy (i.e. 2/3). Moreover, the pressing parliamentary process that had been triggered to undertake these legal guidelines decreased the dialogue interval to lower than a day for every invoice, leaving no time for scrutiny. Each legal guidelines had been instantly challenged earlier than the SCC, which suspended the legal guidelines and their results. The referendum however passed off on 1 October 2017, though with out procedural ensures.
The disdain for the rule of legislation may be seen in the way in which the referendum was applied. The 2017 referendum didn’t adjust to lots of the Venice Fee pointers on the holding of referendums, as set out in a Code of Good Follow on Referendums from 2007, and now the Revised Pointers from 2020. For example, the Venice Fee stipulates that referenda shouldn’t be held if the Structure or a statute in conformity with the Structure doesn’t present for them. Neither the Spanish Structure nor the Catalan Statute of Autonomy supplies for a referendum on secession. Venice Fee pointers additionally underline the significance of an neutral physique being in control of organising the referendum. Nonetheless, the electoral fee that the Catalan Parliament had appointed to oversee the referendum (with out members of the opposition) was dissolved after the Constitutional Court docket imposed coercive fines on its members (Decrees 123 and 124/2017, of 19 and 20 September 2017) and was not changed.
The populist narrative of the Catalan authorities on the time of the 2017 referendum thus suits throughout the latest wave of populism. It assumed that democracy is at its most real when the need of the individuals is limitless, emerges instantly from a referendum, and that majority preferences shouldn’t be topic to judicial overview. Such a populist strategy dangers eroding the legitimacy of one of many central pillars of the submit WWII authorized order: counter-majoritarian establishments, notably the courts and constitutional justice.
References
- For an extended model, see González Campañá, Núria, “Constitutional erosion in Spain: From the Catalan Professional-Independence Disaster to the (Supposed) Judiciary Reforms”, in Castellà Andreu, J.M. and Simonelli, M.A. (eds), Populism and Up to date Democracy in Europe (Springer, 2022).
- This work was supported by the European Union’s Horizon 2020 analysis and innovation programme below grant settlement No 822590 (Democratic Efficacy and the kinds of populism in Europe).
- The distinction between the share of seats (greater than 50%) and the share of in style vote (lower than 50%) is an end result of the Catalan electoral regime, wherein rural districts the place independentism is stronger are over-represented in comparison with the metropolitan space of Barcelona.
- Interview obtainable right here: https://www.elmundo.es/cataluna/2014/09/14/54149260268e3e6b608b457a.html accessed 20 July 2022.
Writer
Núria González Campañá is Assistant Professor of Constitutional Legislation, member of GEDECO, College of Barcelona. This weblog is a part of a brand new collection on the home political implications and worldwide echoes of the independence bid in Catalonia. The collection is a collaboration between the Centre on Constitutional Change and the Institute for Comparative Federalism at EURAC Analysis in Bolzano/Bozen, Italy.
Learn different blogs in our Catalonia collection
—
Picture by Emily Morter on Unsplash
