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Catalonia is Already Independent

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The suspended declaration of Catalan independence on 10 October was followed by a week of uncertainty and allegations, with both Spanish and Catalan leaders engaging in a tit-for-tat series of accusations more reminiscent of a schoolyard than of two national leaders. Spanish Prime Minister Mariano Rajoy insisted that Catalan leader Carles Puigdemont give a clear answer as to whether independence had been declared or not; for his part, Mr. Puigdemont insisted that Mr. Rajoy agree to dialogue without answering the question. The Spanish Prime Minister’s request for clarification wasn’t just a polite nicety, it was a fundamental first step required by the Spanish constitution before more drastic measures could be taken. In failing to respond – at least to the satisfaction of the Spanish premier – Mr. Puigdemont fulfilled the necessary precondition for the formal application of never before used Article 155[1]. Indeed, the Catalan leader made this point clearly in his response: “we offer dialogue, they offer threats.”

On Saturday, Mr. Rajoy finally put forward his plan to deal with the Catalan Independence challenge once and for all. Sustaining his authority under Article 155, the Spanish leader proposed the removal from office all senior officials of the Generalitat, the Catalan Executive; limit the powers of the legislature without completely suspending it; and seize control of the regional police force, the Ministries of Interior, Finance and Communications, including the regional public broadcaster TV3, and the IT department. The proposal also included a call for regional elections within six months. The Spanish Senate will need to approve these measures in the next day or two through a simple majority, which cannot be a problem given that Mr. Rajoy’s Popular Party controls more than enough seats in the upper house. The Spanish leader’s proposal leaves unanswered the question of how regional elections will do anything but solidify the legislative majority of the independentistas without a wholesale banning of political parties that would undermine any legitimacy said elections might have. He also failed to explain how six months of intervention is expected to make up for a decade to policy failures that have led to this impasse.

President of the Catalan Parliament Carme Forcadell called this “a coup against a democratically elected government” while Mr. Puigdemont called it the “worst attack on democracy since Franco”. Earlier in the week, Mr. Puigdemont had threatened to declare independence should the Spanish attempt to impose Article 155 on Catalonia. The Spanish State Prosecutor responded by preparing charges of rebellion against Mr. Puigdemont should he carry through this threat.

Is a declaration of independence actually necessary? A reading of the 6 September Referendum Law[2], on which the Catalans are basing their legal argument, indicates that Catalonia has already declared independence and did so on the 10th of October.

Article 2 establishes the sovereignty of the Catalan people and their right to freely and democratically determine their political organization. Article 3 then establishes the Catalan Parliament as the sole representative of the Catalan people while also rejecting any other legal norms which may enter into conflict with the fundamental and inalienable right of self-determination of the Catalan people, namely the Spanish government, judiciary and constitution. Leaving aside for the moment that this is already a declaration of independence from all political ties to any other power, in other words Spain, the Referendum Law establishes specific conditions for its entry into operation.

The key is in article 4, section 4. I have copied the relevant article in its entirety:

  1. The citizens of Catalonia are called to decide on the political future of Catalonia by means of a referendum, whose terms are herein outlined.
  2. The question to be answered through the referendum is as follows: “Should Catalonia become an independent state in the form of a republic?”

 

  1. The result of the referendum will be legally binding.
  2. If the official count of the valid ballots cast results in a greater number of affirmative votes than negative, this result implies the independence of Catalonia. To this end, the Parliament of Catalonia within two days subsequent to the publishing of the official results by the Electoral Board will meet in ordinary session to effect the formal declaration of the independence of Catalonia, specify its effects and initiate the constituent process.
  3. If the official count of the valid ballots cast results in a greater number of negative votes than affirmative, this result implies the immediate call to a regional election.

There is nothing conditional about Section 4: more “yes” votes equals independence. Period. Once the official ballot count was published, the Catalan Parliament was to meet to be informed of the results. There was no requirement to vote on independence. The Referendum Law does establish that the Catalan Parliament would “specify its effects and initiate the constituent process,” which would theoretically allow the legislature to delay the commencement of that transitional period. That power, however, resides with the legislature, not with the leader of the Generalitat – and there was no vote during the October 10th session. The 72 pro-independence members of Parliament even signed a Declaration of Catalan Independence. So the “suspension for dialogue” called for by Mr. Puigdemont cannot be taken to imply a suspension of independence, only on the initiation of the constituent assembly process[3].

For pro-independence Catalans, Independence Day ought to fall on October 10th.

Does this matter? Not to the Spanish obviously, who reject completely both any Catalan declaration of independence and the legal basis for it. But it should matter to Catalans, since their institutions are now threatened with a take-over from Madrid. Without a declaration of their own independence, the Generalitat is not really in a position to resist; with a declaration of independence, there is at least a disputable legal basis for rejection of Article 155 of the Spanish Constitution, which the Catalan government, legislature and people will have formally repudiated. Ultimately, in every struggle for independence, the only guarantee is victory: lose and you are a “damned rebel”, win and you are a “patriot and founding father”.

Regardless of the declaration of independence, the practical test will be once Mr. Rajoy attempts to carry through his plan of action. Declaring that you control institutions is very different from actually exerting said control: if Messrs. Puigdemont and Junqueras refuse to leave office, how will he expel them? If they refuse, after a declaration of independence, to attend a court summons or pay a fine, how will he oblige them to do so? Perhaps more importantly, if the Mossos d’Esquadra politely refuse to accept orders from some newcomer from Madrid rather than their existing boss, Mr. Trapero, exactly how far is Madrid prepared to go to compel obedience? We will find out over the next few weeks.


Sources and Notes

[1] Article 155 of the Spanish Constitution states:

“1. If a Self-governing Community does not fulfil the obligations imposed upon it by the Constitution or other laws, or acts in a way that is seriously prejudicial to the general interest of Spain, the Government, after having lodged a complaint with the President of the Self-governing Community and failed to receive satisfaction therefore, may, following approval granted by the overall majority of the Senate, take all measures necessary to compel the Community to meet said obligations, or to protect the abovementioned general interest.

  1. With a view to implementing the measures provided for in the foregoing paragraph, the Government may issue instructions to all the authorities of the Self-governing Communities.”

[2] Llei 19/2017, del 6 de setembre, del referéndum d’autodeterminació (in Catalan)

[3] Necessary for the drafting and approval of a new Catalan Constitution.

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