Secessionism in Catalonia
Secessionism may be considered a sort of constituent action.14 In fact, it reflects with precision the foundational moment to which I alluded when I defined the idea of constitution as a decision on the allocation of power.
Secession clearly represents the replacement of the elite controlling a territory and a population by another: the elite inhabiting the seceding territory claims to expel that of the parent State in order to monopolize the power upon a smaller portion. The independence of the American States, as we have seen, gives a good account on such a notion of the constituent moment. The formal translation of America’s unilateral secession was, first, the Constitutions of the States and the Articles of the Confederation and, second, the U.S. Federal Constitution, but none of these episodes would be materialized without the decision that represented the Declaration of Independence in 1776 and the ability to defend it by military means.The constituent agent awakens through secession, not through the constitutional drafting which merely represents the certification of the situation entrenched by the rupture with the previous sovereign. As Pau Bossacoma (2020, p. 355) wrote interpreting the sense of a declaration ofindependence in Kelsenian positivist terms, such unilateral declarations may be understood as norms that, though not derived from any previous internal constitutional norm, identify and seek to give validity to the birth of a new legal-logical constitution.
In Catalonia, in which one sees one of the most vigorous secessionist movements in Western Europe, there had been several discussions on the character that the future constitution of the new State should adopt. There had been some constitutional drafts proposed to the Catalan authorities during the 2010s and, after 2018, a group of experts was appointed by the Catalan President, Joaquim Torra, in order to think about the constitutional design of the future republic.
But all such controversies on the Catalan constitutional framework had been evaporated by not assuming the “principle of reality,” namely, that first of all secession from Spain had to be consummated and that only the success of this separation and the way to achieve it could determine the specific content of“New constitutionalism” & constituent power 201 an eventual formal constitution. Secession from Spain, if perpetrated, and the different allocation of power that such a move might bring shall be Catalonia’s constitution.
Secessions are rare in liberal democracies since minority nations within a larger State may find some kind of accommodation through the participative channels that democratic mechanisms provide. Pluralist democracies tend to respect the will of the peoples coexisting within their borders by allowing them to determine their political status in whatever form they choose: mere administrative decentralization, political autonomy, federal statehood, or even co-sovereign partnership. Even in those democratic areas in which the secessionist experiences have been closer to the claim for creating a new independent State, as happened in Quebec or in Scotland, central authorities of the parent State agreed, or at least tolerated, the holding of a referendum on sovereignty. Somehow, to say it in terms of international law, the respect of the right to the internal self-determination of the minority nation by the central authorities through democratic structures of decision-making have prevented (within the contexts mentioned in Canada or Great Britain) the exercise of the right to external self-determination by the peoples of Quebec or Scotland, respectively (Lopez Bofill, 2019b, pp. 988-989). Both citizenries voted to remain in the existing States. Both in Quebec (in 1980 and in 1995) and in Scotland (2014) there were debates on the question in specific terms, there was no violence, and the pro-secessionist sides lost the referenda. There was not secession and, accordingly, there was not a different allocation of powers.
What makes the Catalan case so peculiar is that it had been developed within a supposed liberal democracy (Spain) which, regarding the defence of its national unity behaves rather as an illiberal State (Lopez Bofill, 2019a, pp. 967-969). Spanish central authorities have not attended to the demands of the Catalan citizenry for further self-government for decades (even when expressed entirely by specific means) and had responded to the secessionist challenge by repressing the holding of a referendum on independence through the application of criminal law and the imprisonment of the Catalan leaders. Such a harsh reaction blocking any Catalan decision-making on the national political status has done nothing but foster the consolidation of a sustained pro-independence majority in Catalan institutions.
The crisis between the Catalan government and the Spanish institutions began to be envisaged when, after a long process of amending the Catalan Statute (Estatut d'Autonomia) passed both by the Catalan Parliament and the Spanish legislature and ratified by the Catalan citizenry in referendum, this text was declared unconstitutional and void in its basic tenets by the Spanish Constitutional Court.15 The Spanish Constitutional Court decision on the amendment of the Catalan Statute may be deemed as the first stage in the escalation of the conflict in which the Catalan people’s right to (internal) self-determination had been frustrated: the Statute had been passed by three democratic instances (the Catalan Parliament, the Spanish Cortes, and the Catalan citizenry) following the formal paths of amendment of the Statute according to the Spanish Constitution, but the
Spanish Constitutional Court dismantled the main principles which had inspired the change. The Catalan government sought to redress the loss of powers that the Constitutional Court ruling had represented by at least enhancing the Catalan financing with an agreement with the Spanish Government. But the latter, at that moment led by Mariano Rajoy of the conservative Popular Party, refused a limine even to open negotiations on the financial issue with the Catalan president then in office, Artur Mas.
The response in Catalonia was a march of hundreds of thousands of people on Catalonia’s national day (September 11) in 2012 claiming for independence and the calling of snap elections by Artur Mas with a commitment to organize a consultation on Catalonia’s political status. The expected consultation was held on November 9, 2014 in the form of a “participatory process” (Bossacoma and Lopez Bofill, 2016, pp. 122-128) but President Mas and other members of the Catalan government that had been involved in the organization ofthis consultation exercise had to face criminal trial on the grounds of disobedience, prevarication, embezzlement of public funds, and usurpation of functions. They were finally convicted on the grounds of disobedience, which implied disqualification for office. Prison punishments would be dictated later, on occasion of the second round of events concerning Catalonia’s struggle for independence that would be developed from the elections that were held in autumn 2015, which were won by the pro-independence forces, obtaining the overall majority of seats in the Catalan Parliament (Marti and Cetra, 2016).
The first step given by the majority in the path to the creation of a new State was the passing of a parliamentary resolution16 which, even though it was not considered legally binding, was immediately referred by the Spanish Government to the Spanish Constitutional Court and declared unconstitutional and void.17 In the aforementioned resolution, it was stated that “[t]he Parliament of Catalonia solemnly declares the beginning of the process of creation of an independent Catalan State in the form of a republic.”18
The response of the Spanish central institutions was that since the Spanish Constitutional Court considered the parliamentary resolution incompatible with the Constitution, any subsequent step taken by the Catalan MPs or any other Catalan authorities connected to the aim of “creating an independent Catalan State” could be prosecuted and punished through criminal law.
The electoral programme backed by the pro-independence parties in the Catalan parliamentary elections of September 27, 2015, was likely to opt to proceed with a declaration of independence and to seek international recognition for the new State.
But secessionists, who were led by a new president, Carles Puigdemont, starting in January 2016, changed the aim of declaring the independence to that of holding a referendum on the independence of Catalonia scheduled for October 1, 2017 (Lopez Bofill, 2019a, p. 963).In contrast to the “participatory process” held on November the 9, 2014, the 2017 process was directly laid out as a referendum understood as a consultation addressed to the Catalan electorate in which a single and clear question was posed (“Do you want Catalonia to become an independent State with the form of a
“New constitutionalism” & constituent power 203 republic?”) able to be answered with a ”yes” or a “no.” The Catalan referendum on independence was planned to be covered by an ad-hoc piece oflegislation regulating only one referendum process: the referendum on the secession of Catalonia from Spain. In September 2017, the Catalan Parliament passed the referendum bill to provide the legal framework for organizing the October 1 referendum to which the Catalan president had committed.19 Even though the mere drafting of the bill was covered by the prohibition of the Spanish Constitutional Court and reinforced by the threat of indicting the president of the Parliament of Catalonia and four other members of the Parliament’s bureau, the plenary debated and passed the bill in one day and, thus, the Spanish central authorities had no time to interrupt the parliamentary session and to impede the bill’s adoption.
However, the Spanish central institutions did not feel concerned by the Catalan sovereign proclamation entitled in the self-determination referendum bill and, as expected, the Spanish President of Government Mariano Rajoy lodged several appeals of unconstitutionality before the Spanish Constitutional Court.20 The Court admitted the appeals, suspended the provisions of the referendum bill, and issued a warning towards 77 Catalan officials that any act related to the holding of the referendum could imply criminal liability.
More measures were taken by the Spanish government, the prosecutor, and the Spanish judiciary in order to impede the referendum: campaign material and ballot papers were seized, orders to seal off the entrance to polling stations were issued, newspaper editors were accused of aiding the preparations for the referendum, more than one hundred websites which provided information on the referendum were closed, public meetings called to discuss the issue were banned, and thousands of paramilitary officers depending on the Spanish administration (la Guardia Civil, the Civil Guard) were sent to occupy Catalan government buildings, and arrested some Catalan officials charging them with the crime of sedition (punishable by up to 15 years of prison).
Finally, the referendum on October 1, 2017, awoke to a fierce storm by the Spanish police at polling stations causing almost 900 hundred people to be injured and produced terrifying images that scandalized the international public in the West. In spite of such enormous pressure, including the closing of 14 per cent of the polling stations, the confiscation of thousands of votes and repeated cyber-attacks caused by the Spanish forces, Catalan people voted in a turnout that reached 43.03 per cent of citizens with franchise (the final outcome was of 2,020,144 “yes” votes for independence against 176,566 ”no” votes, with 65,715 being void or blank).
The Catalan Parliament declared independence on October 27, 2017 but the Spanish government immediately seized the Catalan self-government, dissolved the Catalan Parliament, and removed the Catalan government. Charges for rebellion, sedition, embezzlement, and disobedience were lodged against the members of the Catalan government, the Catalan Parliament chairwoman, and two pro-independence grassroots leaders. Some of them fled into exile, and others were detained, trialled, and finally convicted in October 2019, to punishments that added up to more than one hundred years of prison.21
In the elections called by the Spanish government and held on December 21, 2017, pro-independence parties, in spite of such pressing circumstances, again won the elections and formed a government under the presidency of the proindependence leader Joaquim Torra. Secessionists also won in Catalonia all the following elections to the Spanish Parliament (April 2019 and November 2019), to the European Parliament (May 2019), as well as the elections to the Catalan municipalities (May 2019). Pro-independence Catalan parties also won the elections to the Catalan Parliament held on February 14, 2021. The situation regarding the Catalan politicians in prison also led to some decisions of European instances estimating that imprisonment had violated parliamentary immunity and political rights.22 However, Spanish authorities did not liberate the politicians concerned.
Despite the severe repression displayed by the Spanish central authorities in penalizing any attempt to organize a secessionist referendum, the Catalan process would, in case of being completed in the near future, still pass the test on the no victims rule. Indeed, the violence exercised by the Spanish authorities has been acute (in that regard I may mention the aggressions against voters during the referendum of October 1,2017, by the Spanish police and the serious physical harm suffered by some of them), but still nobody has died for political reasons related to the constitutional transformation that the emergence of a new State might represent.
It is nevertheless true that Catalan independence is still a chimera, although it may be reasoned that the Declaration of Independence was already issued on October 27, 2017 and that the new republic at least exists in the realm of rules, only pending, as any declaration of independence, on the recognition by other sovereign States.
However, the recognition of that State is attached to the practice observed in international law according to which the newly proclaimed independent State has to enjoy effective control of the territory and the population upon which it claims its sovereignty (Bossacoma, 2020, pp. 189-207), and in this sense it is not unthinkable to predict that the degree of violence, encompassing mortal victims, might increase if the Catalan authorities struggled to achieve an effective control of the territory and population, if the Spanish authorities tried to prevent it.
At the moment of writing, the no victims rule has not been infringed in the Catalan-Spanish conflict but it might be stated as well that no Catalan independence has yet been made real and that, consequently, no constitutional transformation has taken place either.