The Spain-Catalonia crisis: A constitutional reflexion

Estelada. Independentist flag of Catalonia. Bandera independentismo Catalan

Vito Breda discusses the current system of governance in the Spanish Constitution.

The Spanish Constitutional system is defined by extremes. It has one of the most complex asymmetric systems of governance in Europe, one of the most active Constitutional Courts regarding disputes between central and regional institutions, and it experiences periodically volatile central-regional political confrontations, some of which degenerate into violence. The Catalonian crisis and the series of events that led to violence, the dissolution of parliament, and the criminal prosecution of former Catalonian cabinet members will not be discussed in this short narrative. I will suggest in this post that the current system of governance in the Spanish Constitution, and as interpreted by the Spanish Constitutional Court, is due to the design and the interpretation of an ill-suited decentralisation system. In particular, there are strong indications that both regional and central institutions broadcast ethnocentric narratives to gain support from their respective constituencies, yet they are aware of the implausibility of their claims. The sabre-rattling phase (or the ‘chicken strategy’ as it is called by the Commission of International Experts) is used by the representatives of central and regional governments as a device that prepares the stage for the ‘real’ negotiations in which substantial concessions are made by both parties. So, the political crisis between Spanish-Catalonian governments might be simulated and its economic and sociological effects significant, but, from a constitutional perspective, it should be considered as one of the latest manifestations of a pernicious system of territorial governance.

Firstly, the 1978 constitution has a strict and formalist process of constitutional reforms. However, in relation to its system of territorial governance, regional communities have the prerogative to alter their institutional partnership with central institutions in a way that mirrors the sociological and economic development of regional communities. The statutory system that defines the powers of regional institutions is analogous to the one adopted by the Italian autonomous regions and the US territories. However, Spanish regional statutes of autonomy are not constitutional laws, as the Italian autonomous regions and the Spanish Senate do not have the same level of discretion as the US Congress. In other words, the Spanish Constitutional Court can, and did so with gusto, repeal sections of regional statutes that were agreed upon by central and regional parliaments. I will return to this point later.

Secondly, regional institutions hold the power to change their institutional settings within the constitution in a way that dynamically meets their cultural or geopolitical needs. This is one of the manifestations of the so-called dispositive principle. The autonomous regions, which were intended as a form of recognition for the distinctive social aspects of the Spanish territory (during Franco’s regime, the Basques and Catalonians were subjected to policies that should be considered equivalent to cultural genocide and that might justify their special status), currently cover the entire landmass of Spain and overseas territories. The decision of the central parliament to extend the prerogatives to set up autonomous institutions in all the geographical communities that might ask for them is colloquially known as the ‘café para todos’ policy. That is, translated literally, ‘coffee for everyone’. In this context, it translates as: ‘a benefit intended for the historical nationalities was granted to all regions of Spain’. In practice, the prerogative to increase regional powers, which was intended to foster collaboration between central government and regional institutions, has been traded between political parties that tried to obtain regional support during the national campaign in exchange for a promise of more powers for regional governments. The effect of this pre-election deals is that regional statutes are subjected to modest parliamentary scrutiny and seldom perform well under constitutional review.

Agranoff and Gallarin report that during the 1990s, the Constitutional Court decided over 100 cases that were brought by autonomous regions against central government legislation. The full load of res judicata per year of the High Court of Australia and of the US Supreme Court is a fraction of that case law. Furthermore, the types of judicial reviews are becoming more complex. In the past two decades, 7 of the 19 communities amended their statutes of autonomy. The 1979 Catalonian statute of autonomy contained only 53 sections, whereas the version approved by the Spanish parliament in 2006, reviewed in Decision n. 31, includes over 200 sections. Decision n. 31 is considered one of the triggers of the 2017 Spanish constitutional crisis.

Thirdly, and this might be a corollary of the previous point, the Spanish process of accommodation of regionalist claims (I use the term ‘identity-based constitutional demands’) occurs in an institutional setting that appears to favour an ethnocentric conception of ‘national identity’. The idea of the centrality of the Spanish nation has the effect of stabilizing the process of accommodation of identity-based constitutional demands, yet it tends to feed the political arenas with ethnocentric narratives which favour, as in the recent case of the 2017 Catalonian referendum, the radicalisation of political stances.

The recent spat commenced, perhaps, with the approval of the Ley Orgánica 6/2006, de 19 de julio, de reforma del Estatuto de Autonomía de Cataluña. The socialist central government passed the statute in collaboration with the Catalonian government. The approval by parliament and by a regional referendum was followed by a request for a constitutional review by 99 MPs of the Spanish Popular Party.

The decision that followed (Decision n. 31) is technically a remarkable example of jurisdictional activity. The complexity of the decision and its length, which is over 300 pages, confirms the role of a normative third party in a triadic relation. It is worth mentioning again that the Spanish constitution explicitly recognized the nationalities that composed the Spanish peoples, and the Constitutional Court conceived that historical communities like the Catalans were included in that reference. Given the lack of legal relevance and the existing constitutional recognition, it might be logical to suggest that asserting the existence of the Catalan nation is no more controversial than asserting the existence of the four nations that, after 1707, made up the UK. However, the Constitutional Court decided to consider the reference to the national symbol of Catalonia as incompatible with the idea of the unity of the Spanish nation. Article 8 of the statute of autonomy has been challenged for classifying as ‘national’ the symbols of Catalonia listed in the various subsections of the provision. In short, the reference to ‘a nation’, which the Court distinguished from a reference to ‘a nationality’, is perceived as antithetical to the unity of the Spanish nation protected by section 2 of the constitution.

The differences between the terms ‘nation’ and ‘nationality’ are not supported by normative reasoning. The terms ‘nation’ and ‘nationality’ are, in a sociological analysis, descriptive of a set of cultural assumptions that are normally associated with the ideology of nationalism. As one of the factors constituting a nation, for instance, a community might be associated with speaking the same language, as is the case with the Catalans, with a shared religion, as is the case with most Jews around the world, and with a sense of belonging to a specific territory, as is the case with the rest of the Spanish peoples. In other words, ‘nation’ and ‘nationality’ cannot be scientifically differentiated. Therefore, it is difficult to find a normative explanation for the Constitutional Court’s decision that the reference to a nation and to national symbols in the preamble of the 2006 Catalonian statute of autonomy is incompatible with the concept of the ‘Spanish nation’ in section 2 of the constitution.

The reasoning for inserting a distinction between ‘nation’ and ‘nationality’ in Decision n. 31 is, instead, to be found in the contextual setting in which the Court carried out its third-party mediating role. The relative implausibility of the claim of an exclusive role of the Spanish nation (as the only Spanish nation) or the demand for recognition of the Catalan nationality of Catalan nationalists might not have substantive legal relevance. It is, perhaps, an attempt to legalize the dyadic interaction between Spanish and Catalonian nationalists. However, it also indicates that the Court has taken its role as a triatic arbitrator onto precarious grounds.

The solution, widely supported by public lawyers, appears to be to reform the constitution, yet the constitutional amendment process is highly articulated and the text is perceived as virtually unmodifiable. Since 1978, the constitution has been amended only twice, and in both situations, the changes were motivated by external factors (for example, the pressure of external investors in the 2008 crisis). A rigid, almost paralysed constitution is, at a general level, a severe limitation in a multinational society where minorities are seeking the recognition and accommodation of their identity-based constitutional claims. This might be the case of the constitutionally unrecognised Aboriginal Peoples in Australia or the French Speaking Quebecois in Canada, but in the case of Spain, it is particularly unsettling. It is so perhaps, because European nations have a well-established history of mismanaging nationalist narratives, dissolving parliaments, manipulating elections and using black ink to draw borders whilst pretending to promote the idea of a ‘neutered’ legal system and neutered constitution. Whatever the reason might be that makes the crisis so topical it is, I submit, a manifestation of unsuitable constitutional arrangements for a modern multinational system.

Vito Breda, School of Law and Justice, University of Southern Queensland, Australia

Constitutional Law and Regionalism: A Comparative Analysis of Regionalist Negotiations by Vito Breda will be published Autumn 2018

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