Constitutional crisis in Spain over Catalan independence referendum

In the wake of decisions last week by the government of Catalonia, the Spanish Constitutional Court and the Spanish government, Carles Puigdemont, the head of the Catalan Generalitat, and Spanish Prime Minister Mariano Rajoy are racing, like Thelma and Louise, toward a cliff-edge beyond which lies a full-fledged constitutional crisis. Both sides need a timeout – to be followed by a comprehensive constitutional negotiation. But the odds appear low that either will happen. 

This latest manifestation of the long-standing dispute over the place – if any – of Catalonia in Spain began last week when the Catalan parliament voted by 72 to 52 with 11 abstentions to call a binding referendum on Oct. 1 to decide whether Catalonia should become “an independent state in the form of a republic.” Supporting the motion were the 62 representatives of Together for Yes (Junts pel Sí) that includes most of the center-right, pro-independence Convergence and Union and the Republican Left, and the 10 representatives of the far-left Catalan Popular Unity party. Opposing the motion were the 25 representatives of the Citizens Party (Ciudadanos), the 16 representatives of the Socialists and the 11 representatives of Rajoy’s People’s Party.

The next day, Spain’s Constitutional Tribunal suspended the law and Rajoy said he will “stop at nothing” to prevent the referendum. Since then, the police have raided businesses where referendum ballots might be printed and a newspaper supporting the referendum. The chief prosecutor has ordered local prosecutors to summon the more than 700 mayors who, in response to a call from the Catalan government, said they will cooperate with it in holding the referendum and have the Catalan police arrest those who don’t show up. Meanwhile, Puigdemont, although threatened with the prospect of charges of civil disobedience, a substantial fine and a ban from public office similar to those levied on Artur Mas, his predecessor who called the non-binding referendum in 2014, continues to insist the referendum will take place.

The question of Catalonia’s relationship to Spain has, of course, a very long history; after all, its National Day (Diada), which is celebrated each September 11 and this year brought out more than a million people in a festive celebration in Barcelona, commemorates the defeat in 1714 of Catalonia by Spain’s King Philip V, the grandson of French King Louis XIV. But the current manifestation of the long-standing tension between Spain and Catalonia can be dated to the 2010 6-4 decision of the Constitutional Court to annul or apply a restrictive interpretation to substantial portions of a statute approved four years earlier by substantial majorities in both the Spanish and Catalan parliaments that granted special autonomy to Catalonia beyond the limited autonomy  enjoyed under the constitution’s provision allowing provinces to form an “autonomous community.” The statute was an effort to resolve a dispute that had arisen between Madrid and Barcelona over the amount of tax revenues going from Barcelona to Madrid for the latter’s use, including for payments to the poorer regions of the country.

On Sept. 11, 2012, more than a million people came out in the streets of Barcelona and throughout Catalonia in celebration of National Day. Two months later, in the elections for the Catalan parliament, the governing Convergence and Union party experienced a significant setback while the pro-independence Republican Left nearly doubled its vote and seats. Mas, the CiU leader, negotiated a coalition agreement with the Republican Left which committed the new government to holding a referendum on the political future of Catalonia. In September 2014, in the wake of another large National Day demonstration, the Catalan parliament approved a call for a non-binding referendum on independence. The Spanish government appealed to the Constitutional Court and the latter provisionally suspended the law. The Catalan government slightly modified the law to delete a reference to independence in the title but the Spanish government again appealed to the Court and the Court again suspended the law. Nevertheless, five days later, on Nov. 9, 2014, the Catalan government held the referendum.

The 2014 referendum asked two questions – first, did the voter want Catalonia to become a state and, in the event the answer was yes, did the voter want that state to be independent. Of those voting – estimates ranged from 37 per cent to 42 per cent of the electorate (there was no official turnout reported) – 81 per cent said yes to both questions, 10 per cent said yes to the first and no to the second and 5 per cent said no to both. Mas and two other Catalan officials were charged with civil disobedience and, earlier this year, were fined and barred from holding public office for varying terms for holding an election in violation of a court order.

Fueled in part by the support for independence reflected in the 2014 referendum (despite the low turnout), the Convergence and Union party and the Republican Left formed Together for Yes (Junts pel Sí) in 2015 and, drawing support from the annual National Day celebration only two weeks earlier, won almost 40 per cent of the vote in the September 27, 2015 Catalan election on a program that committed the parties to holding another referendum on independence and preparing the necessary institutional changes for an independent Catalonia.

The big winner in that election was the anti-independence Citizens party (Ciudadanos), which more than doubled its vote share and nearly tripled its seats in the parliament; as it turned out, Together for Yes actually lost a bit of support, compared with the vote in 2012 for its constituent parties. Nevertheless, it formed the government and last September, after another National Day celebration, Puigdemont proposed calling a binding referendum on independence and last October the Catalan parliament approved it. The Spanish constitution doesn’t allow a vote on independence by a region and in December the Constitutional Court annulled the parliament’s resolution. In June, the Catalan government nevertheless announced its intention to hold a binding referendum on independence and last week made it official.

Spain and Catalonia both need to take a timeout before they both go over the cliff-edge into a full-blown constitutional crisis. And after stepping away from the cliff-edge, they need to undertake a comprehensive negotiation – one that fully addresses the grievances that gave rise to the 2006 statute granting Catalonia greater autonomy that, despite its approval by overwhelming majorities in both the Spanish and Catalan parliaments, was gutted four years later by the Constitutional Court. As part of that negotiation, they should consider whether Spain and its historic regions should move beyond the ambiguous halfway house of “autonomous communities” within a unitary state to a full-fledged federal system of government in which the regional governments have substantially more autonomy.

That negotiation should also elaborate a procedure that provides a constitutional path through which a region which expresses, through its democratic institutions, a clear and unambiguous desire to become independent can undertake a negotiation with the national government that might, if both governments agree and the constitution is amended, allow it to become independent. There is at least one exemplary model of what that path might look like – the Canadian Supreme Court’s Reference re Secession of Quebec (1998). Issued at the request of the federal government after the 1995 referendum in Quebec that came very close to giving the sovereigntists a majority, that decision established that a province can secede only if the representatives of the two legitimate majorities – the majority in the province and the majority in the nation – negotiate an agreement that reconciles and accommodates all of the relevant rights and obligations and the constitution is amended to recognize the secession.  

David R. Cameron is a professor of political science, director of the Program in European Union Studies of the MacMillan Center, and member of the MacMillan Center’s Canadian Studies Committee.