Photo of balconies in Barcelona with the Catalonia flag

The quest for independence in Catalonia: Between the rule of law and the principle of democracy

Published: 17 August 2022

Author: Alberto López Basaguren, Professor of Constitutional Law, University of the Basque Country

This blog is part of a series on the domestic political implications and international echoes of the independence bid in Catalonia. The series is a collaboration between the Centre on Constitutional Change and the Institute for Comparative Federalism at EURAC Research in Bolzano/Bozen, Italy.

Secessionist claims in Spain: from the Basque Country to Catalonia

In Spain, two major political crises of a loosely “secessionist" nature have arisen in recent decades. The first concerned the Ibarretxe plan in the Basque Country (the plan was named after its promoter, the then head of the Basque Government, Juan José Ibarretxe). The crisis lasted throughout the 2000s until the parliamentary elections of 2009 when the Basque Nationalist Party lost power. The second is the pro-independence claim in Catalonia - known as "the process" -  which developed from 2012 to 2017, though with implications that continue through to today.

Both political processes were based on the idea of the "right to decide”. On occasion, promoters of the "right to decide" argued that it was exclusively about the right of citizens to express their preference for the political status of their community. This would be through a referendum or "consultation", a term designed to avoid the legal limits on the possibility of a referendum established by the Spanish Constitutional Court. Ultimately, the "right to decide" can be viewed as the right to self-determination, which would allow the political community (the Basque Country or Catalonia) to freely decide its political status, including the creation of an independent state.

Despite this shared principle the two political processes differed both in the content of their claims and in the way they were put forward and developed. In the first place, the radical nature of the Catalan pursuit of independence contrasts with the more moderate goals of the Ibarretxe Plan. Independence was the explicit goal of the Catalan ‘process’. By contrast, the Ibarretxe Plan proposed a confederal status, based on the historical rights enshrined in the Constitution. The plan hinted at the possibility that the Basque Country could opt for independence only if the Spanish state did not accept the proposal, or if a negotiated agreement could not be reached.

Second, the two processes diverged in the level of political and social support they received. The Ibarretxe planwas developed with great reluctance on the part of the leadership of Ibarretxe’s own party (PNV), causing a crisis which led to the resignation of its president. The Plan enjoyed limited popular support on the one hand and faced significant political opposition on the other. This is in stark opposition to the Catalan scenario. The pro-independence claim in Catalonia was backed by an impressive level of societal mobilization throughout, including public expressions of support from relevant personalities. Similar pronouncements against independence were strikingly absent.

The ill-conceived basis for Catalan independence and the misguided reaction of the Spanish political system

The movement demanding independence for Catalonia developed on the basis of three fundamental assertions. The first was that the claim for independence was a purely democratic issue. If independence were supported by the majority of the Catalan society there was no possibility of democratically opposing it. The second was that the independence of Catalonia was achievable in the short term (in 2014 the president of Catalonia proposed independence within 18 months). The third assertion was independence was achievable in a fully legal way ("the transition from law to law" concept coined by C. Viver), through the approval by the Parliament of Catalonia of the corresponding "disconnection laws".

These three assertions soon proved to be incorrect and impracticable, as many observers had argued they would. Yet this did not have the slightest effect in dissuading those who led the movement and the Catalan institutions from pursuing their aspirations. The design of the independence process was, in this sense, misconceived, so it could hardly succeed on those assumptions.

But there is a fourth element that affects the character of the secessionist challenge in Catalonia: the absence of an indisputable majority in favour of independence. As it has been pointed out, societal support for the pursuit of independence has been significant, but not sufficiently high to constitute a majority of the electorate. The evolution of support for independence by the electorate, from the parliamentary elections of 2012, through the "consultation" of 9-N of 2014, the plebiscitary elections of 2015 and the referendum of October 1, 2017, weakened in absolute terms (percentage of eligible votes) and in relative terms (votes in favor versus votes against independence).

That weakening was accentuated in the elections of 2017, called as a consequence of the suspension of Catalonia’s autonomy by the central authorities (art. 155 of the Spanish Constitution). This was the culmination of tensions and reactive mobilization of the pro-independence movement and, despite this, pro-independence parties obtained a percentage slightly above 45%, while the parties that opposed independence secured support above 50%. The ICO (Catalan Opinion Institute) polls after that date show the continued decline in support for independence, in 2022 reaching its lowest point since the procès started.

The manner in which the Spanish political system confronted the challenge of Catalan independence has been, likewise, profoundly misguided. Faced with claims of the right to self-determination and a purely "decisionist" conception of democracy as the right to materialize what the majority decides through a direct consultation (referendum), the response was a rigid and narrow conception of the principle of legality. This response not only denied the possibility of Catalonia’s independence, but even denied the legitimacy of any initiative related to this issue. The Constitutional Court prevented a debate on questions related to this issue and the adoption of resolutions of a declarative nature within the Parliament of Catalonia.

An important consequence was the abandonment of the field of debate to the independence movement. The political forces opposing independence did not respond with political arguments, but only with argument about its illegality. This meant that the confrontation was between legality on the one hand, and the democratic principle (regardless of the problems in its formulation) on the other.

The nature of this confrontation poses enormous dangers in the Spanish context. The history of Spain has shown that a consolidated democratic system is not possible without a powerful system of territorial autonomy. At the same time, it also shows that the recognition of territorial diversity and respect for self-government is only possible in the context of a robust democratic system. Viewed from this perspective, the recent thrust of Catalan nationalism, on the one hand, and the response of the Spanish political system, on the other, have seriously jeopardized the health of the democratic system and its system of territorial autonomies.

These errors were illustrated vividly in the events of September 6 and 7 in the Parliament of Catalonia, in which the pro-independence parliamentary majority trampled on the rights of the parliamentary minority in order to push forward the "disconnection laws" (the Law on the independence referendum and the Law on the legal and foundational transition of the Republic), and, on the other hand, in the events of October 1, the day of the referendum on independence, events that flooded the media around the world.

Prospects for the future

Will Kymlicka asserted years ago that federalism has no answer to the demands for secession of a given community. Yet short of secession there is also no answer for the satisfactory recognition and integration of that community outside of a healthy federal system.

Independence in the Basque Country and in Catalonia attracts popular support on the basis of a political discourse in which the discrediting of the system of territorial autonomy plays a decisive role. The limitations and problems of Spain’s system of autonomy are an element without which it is impossible to understand the success, however relative it may be, of pro-independence discourse. Solving these problems and limitations is, consequently, an indispensable objective in the attempt to weaken the support for secession. The reform of the territorial system is, thus, an indispensable objective. Those who seek that reform must learn from the experience of the federal systems that have demonstrated greater political flexibility in facing similar problems.

But the reform of the territorial model is politically unfeasible, at least in the short term, as a result of the political deadlock in which the Spanish political system is mired. This is aggravated by the extreme fragmentation of the state-wide party system in recent years. Beyond a systematic reform of the system of territorial autonomy, there are many things that can be done to make the system politically healthier. One includes improving the system and the practice of multilevel governance, especially when it comes to intergovernmental relations. Another is the development and implementation of a system of territorial finance that is more rational, balanced and more difficult to discredit than the current one.

If these two objectives, neither of which requires far-reaching constitutional reform, were addressed, the autonomous system would be endowed with an incomparably greater coherence and strength; and would be much more difficult to undermine. The current political situation in Spain, however, makes these objectives difficult to achieve.

 

Author

Alberto López Basaguren is Professor of Constitutional Law
at the University of the Basque Country. This blog is part of a new series on the domestic political implications and international echoes of the independence bid in Catalonia. The series is a collaboration between the Centre on Constitutional Change and the Institute for Comparative Federalism at EURAC Research in Bolzano/Bozen, Italy.

Read other blogs in our Catalonia series

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A Week That Changed Scottish Politics? From Humza Yousaf to John Swinney

Does territorial autonomy redirect violence from the national to the subnational level?

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