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Catalonia and the Crisis of the Spanish Constitution: Personal Notes

The Catalan Parliament

A political tragedy

On Sunday October 1, 2017, many people across the world were shocked by the numerous images of the Spanish police and Guardias Civiles (but not the Catalan police, who refused to comply) vigorously beating up peaceful civilians of all ages who were trying to vote in a contested referendum for independence, organized by the Catalan government in defiance of the constitutional court. Whatever one thought of the decision to hold the referendum in open defiance of the Spanish state, the scenes of violence were deplorable, more so when the primary task of the security forces is to protect civilians. If in a modern liberal democracy the state claims a monopoly of violence, it cannot use it legitimately against civilians expressing political dissent, even if the aim of those citizens – as was the case here – is to overturn the current constitutional order by declaring the independence of a culturally distinct political community – what the Spanish constitution itself defines as a ‘historical nationality’. It is obvious that in a genuine democracy political dissenters who seek to express their will through peaceful means should not be treated as criminals – and this is true even if a referendum, which is often an imperfect tool for democracies, may not be the best solution to the current crisis in Catalonia. It is not the existence of a written constitution that creates democracy, but rather, the practical right to participate in politics peacefully, so that the will of the people may be expressed and implemented. On October 1, the Spanish state lost much of its already tarnished legitimacy in Catalonia, and the subsequent refusal by the state authorities – led by King Felipe VI, who acted as spokesman for the conservative government – to acknowledge the harm done and apologize for it, makes this crisis of political legitimacy deeper.

But why is this happening?

The existence of a constitutional crisis in Spain, with a persistent demand of a referendum on independence by a majority of Catalans – including many who do not support independence – has been in the news for a few years. However, many people remain puzzled both by the demand (do not Catalans already have a high degree of devolution?) and by the Spanish refusal to accept it (why not let them vote, treating Catalonia like Quebec or Scotland?). Seen from afar, it should be possible both to contemplate holding a referendum – which would necessitate special legislation – and to convince a majority of Catalans that it is in everybody’s best interest for them to remain in Spain. What one needs to appreciate is that there has always been political tension in Spain about the degree of Catalan self-government and its financial arrangements, with wildly diverging views concerning the effectiveness of the current arrangements. This is a long-term condition. However, in the last few years, between 2010 and 2017, there has also been a collapse of the political ground for the resolution of that tension. This is a short-term crisis, one which in my view was unnecessary. Clumsy politicians have managed to provoke this collapse, rather than avoid it, and have subsequently done their best to crystallize it, rather than dissipate it.    

The chronic condition

After the death of Franco, the constitution of 1978 represented a compromise between the principle of the unity of the Spanish state, and the right of historical nationalities like Catalonia and the Basque country – or indeed any other region in Spain – to rule themselves in a number of areas. Like all compromises, it left people on both extremes unsatisfied, and over the decades there has been a substantial amount of tension and negotiation over this issue. Interestingly, the political tension between Madrid and Catalonia has been much higher than in any other region, except the Basque country – but the latter case was conditioned by the presence of organised terrorism. Thankfully ETA is no longer a problem.

There are complex historical and economic reasons why the tension between Madrid and Barcelona is particularly strong: Catalonia is a strategic region for Spain, and access to its fiscal resources is essential both to maintaining the region’s prosperity and to the strengthening of the Spanish state. The competition is therefore very high. At the same time, Catalonia has a cultural identity which is undeniably distinct and modern, not least in the persistence of its original language as a live alternative to Castilian, in a complex and often admirable system of pragmatic bilingualism (Catalan is also spoken in the Balearic Islands and Valencia, with minor variations, but in Catalonia its cultural status is more solid). Finally, in Catalonia there is a strong sense of national identity – by which I mean that its cultural identity projects itself towards an idea of a historical political community pursuing a common good over time. Like all national identities, it is constructed and ambivalent: it can be at times welcoming and cosmopolitan, but can at other times be self-reassuring and defensive against real or imaginary threats. It is fed by a historical mythology which combines some empirical truths with a selective and often exaggerated interpretation of the past. In effect, Spanish nationalism, which is in this particular respect quite similar, has to coexist with Catalan nationalism. The potential for a clash of political identities underlies the constitutional compromises of 1978. It was not the Constitution of 1978 that failed, but rather the democratic politics that followed.

The crisis of 2010-2017

It is essential to understand that support for Catalan independence was a persistent but minority position of less than 20% over many decades. The situation has changed over the last eight years. Although the economic crisis of 2008 may have acted as a catalyst, the crucial turning point was the successful appeal to the constitutional court by Spain’s conservative party (Partido Popular), then in opposition, in order to overturn a new statute of autonomy which had been negotiated over many years between the Catalan and Spanish parliaments, and afterwards confirmed by means of a referendum in Catalonia. This was achieved in part after manipulating the membership of the constitutional court and its procedures, with extraordinary delays and ad-hominem manoeuvres (a key member was recused). The new statute was not massively popular, approved in 2006, but it represented a compromise: it was meant to correct the erosion of legal and financial capacity in previous years, and it had been rejected at the last minute by the more radical parties in Catalonia (notably ERC, historically committed to the dream of an independent republic) because it had been substantially watered-down. However, it was also perceived as a threat to Spanish unity by the more nationalist sectors in Spain, notably the conservatives. Paradoxically, during the four years when it was valid – from 2006 to 2010 – the new statute changed very few things and created no constitutional cracks. As soon as it was substantially cut down to size by the constitutional court, however, it provoked huge demonstrations in Barcelona, and the significant growth of the pro-independence movement which in a few years reached 40% support. Catalan federalists, bereft of allies in the rest of Spain, flocked to the new cause. This shift started as a radical grassroots movement which the moderate Catalan nationalist government eventually embraced, rather than the other way round. The elites in Madrid were totally unprepared for this reaction, and sought to minimize the protests. For a few years Catalan protests were described as a soufflé that was about to go cold and flatten.    

All attempts by Catalan politicians to re-negotiate the constitution, or the financial system – for example, by giving Catalans a fiscal model similar to the one enjoyed in the Basque country – were rejected out of hand by the Spanish leaders in government.

Arguably, a referendum that is likely to produce a 50-50 split is always a poor option. One which will be opposed by force by a hostile state is an act of imprudence. And yet, the idea becomes attractive when political life is deeply frustrating and all attempts to negotiate solutions fail. Undeniably, the dream of political liberty – which amounts to acquiring the full powers of a modern state – is tempting.

Why is ‘democracy’ not a solution?

In a modern democracy, the legal and political order rests on the will of people, expressed in regular elections, accepted institutions, formal and informal rules, and occasionally referendums. The constitutional order in Spain is in fact built on foundational referendums – both the constitution of 1978 and the statutes of autonomy of 1979 and 2006 were voted and accepted by a majority. Unfortunately, the use and abuse of the constitutional court between 2006 and 2010 to overturn the results of a negotiation between the two parliaments – Catalan and Spanish – and the fact that this was done in open contempt of the subsequent referendum that had taken place Catalonia means that, in effect, a constitution that is now 40 years old has been set in opposition to the subsequent expression of the will of the people.

The statute which resulted from the judgment of the constitutional court was never voted by the Catalan people, and the possibility of reforming the system of devolution in agreement with the constitutional process has de facto been circumvented. It may be concluded that the constitution of 1978 is no longer an expression of the will of the people in Catalonia, understood as a democratic majority. The crisis of constitutional legitimacy is therefore deep, as demonstrated by subsequent events: majorities in the Catalan parliament have persistently requested either a fiscal pact, a constitutional reform, or a referendum for independence. These have all been denied by the Spanish government and parliament (where Catalans will always be a minority of course), feeding the process of radicalization. The expressed will of the majorities in Catalonia and Spain have never again been aligned. This means that in effect the institutional system is deadlocked. Tragically, no efforts have been made to break this deadlock in Madrid, because the overturning of the Catalan statute was celebrated as a victory.

Democracy is only a solution if it can articulate majorities that are respectful of minority rights. In Spain, democracy can only work if it can align to some extent the will of the majority of people of Spain and the will of the majority of people of Catalonia. When this fails, a political crisis ensues, and violence – a denial of democracy – becomes a possibility.

A clash of imperfect legitimacies

The Spanish government draws its legitimacy from the rule of law, by which it denies the validity of any referendum on independence organized unilaterally by the Catalan Government. This legitimacy is weakened by the fact that a vast majority of Catalans (as expressed in polls or in the Catalan parliament) would prefer to solve the issue by means of an official referendum – a possibility which the Spanish government has refused to contemplate. The Catalan government draws its legitimacy from its majority in Catalonia – and in particular, the majority in the Catalan parliament, by which it organized a referendum, and the over two millions votes cast for independence (90% of those cast), despite violent attempts to disrupt the poll.

The legitimacy of this vote is imperfect: besides the fact that, under police pressure, it was not possible to observe all the right procedures, most of those opposing independence did not feel this was a legitimate referendum, and did not vote. Abstention over 55% is not of course the same as a 55% no vote, given that participation in elections is never above 80%, and often much less; it is impossible to estimate accurately how many of those who stayed at home would have actually turned up to vote had this been a legally binding referendum organized by the Spanish state. Nonetheless, everything suggests that a real referendum would have been closely contested.

Should there be a referendum of independence in Catalonia? Not necessarily, but there must be a means for the Spanish state to re-legitimize itself in Catalonia in a manner that is consistent with the will of a vast majority of Catalans.

These are therefore two fundamentally imperfect legitimacies. The legitimacy of the Spanish government position is also further weakened by the widely-supported perception that the judiciary, including the constitutional court, is not politically independent, and by the use of police violence against citizens resisting peacefully. In turn, the position of the Catalan government is further weakened by recourse to unilateral decisions not supported by the opposition and by legal advice in the Catalan parliament. We may treat these as second-order illegitimacies.

The law and the will of the people

If the constitutional order no longer has the consent of the people, it loses its political legitimacy. If one wishes to avoid a violent revolution and counter-revolution, it is essential to respect legal procedures, but, at the same time, upholding the rule law alone cannot create political legitimacy. In Catalonia political consent can no longer be implicit. At the moment, the Spanish constitution is perceived by at least two million Catalan citizens as a kind of prison, one which has been used and manipulated to criminalize political dissent. It is the very constitution that is being contested – since it proclaims the unity of Spain as sacrosanct – that is also being used to legitimize the suppression of political dissent. Hence any peaceful solution will require a political negotiation that goes beyond the existing constitution.    

Which people?

Who is entitled to decide on this issue? Surely, with any Constitutional reform affecting the whole of Spain, Spain as a whole would be called to vote. On the status that belongs to Catalonia, within Spain or outside, Catalan citizens should have a final vote (the idea that the citizens of Seville, Valencia or Madrid would vote in a referendum on Catalan independence, often mooted in Spain, is ludicrous, and does not bear comparison with the common practice in liberal democracies, such as Canada and the United Kingdom). All inhabitants of Catalonia who currently have Spanish citizenship are Catalan citizens for this purpose, whatever their ethnic background, cultural identity or linguistic choices. In practice, a sociology of support or opposition for independence would show that the main dividing line is not class or income (the idea that this is a revolution of the wealthy is a myth, in fact the big banks are all against it), but rather between those who have lived in Catalonia for various generations and usually speak Catalan, and those who have immigrated more recently and do not. Both the left and the right include many people for and against independence, as well as various positions in between. This does not mean that this is a racial issue – an ethnic-cultural divide would be more accurate; nor does it mean that all Catalan speakers support independence, and all Castilian speakers reject it. Catalan society is very plural and very mixed, and many people have expressed their identity as both Catalan and Spanish, albeit with different emphases. Between the 40% hard core for independence, and the perhaps 30% hard core against it, there is considerable room for attitudes to change.

The myth of the silent majority – neither silent nor a majority

Spanish nationalists have consistently appealed to a ‘silent majority’ of Catalans who have been ‘denied’ a voice but will one day rise. This is of course a myth – nobody has been denied a voice, neither in the Catalan parliament, where both the PP and Ciudadanos (a modern party primarily defined by its opposition to the traditions of cultural Catalanism) have been vociferous, nor in the media, which is, on the whole, more plural in Catalonia than in Spain, nor in the streets, where there have been demonstrations of all kinds. The problem is that those parties who consistently oppose the idea of a referendum usually represent between 25% and 30% of the electorate in Catalan elections, and are politically very distant from other left-wing groups such as the Comuns, who generally oppose independence but defend the right of Catalan self-determination, and would probably swing any democratic choice. The largest demonstrations against independence have been smaller than the largest demonstrations asserting the Catalan ‘right to decide’, and have relied on many supporters from outside Catalonia.  

What Catalan opponents of independence have not of course had is the opportunity to vote in a referendum on independence that the Spanish state might consider legitimate. It is difficult to count them.

Barcelona and Madrid: a question of power

The conflict might seem irrational and based on nationalist intransigence, but in reality there is a very clear logic behind it: a competition for power and resources between Madrid (with its large Spanish hinterland), and Barcelona (with its smaller but closely integrated Catalan hinterland) – that is, between the social elites of two alternative centres of power, one dominant because it controls the state, and another which still has many economic and human resources and refuses to give up on a substantial degree of self-government. Were Barcelona less economically and culturally dynamic as a city, Catalonia would in all likelihood be more provincial and more subservient to the Spanish state – consider Valencia and its region as a counter-example: they have the same local language and much of the same history as Catalonia, but the politics are much better aligned with those of the rest of Spain. It is symptomatic that mainstream Spanish political parties, whether in government or in opposition, are often a minority in Catalonia, and largely rely on an immigrant vote.

The role of Europe and the International community

Traditionally, political Catalanism has a been very pro-European, and many Catalan nationalists have been very disappointed when they gradually learnt that the Spanish state has managed to convince its European partners that the political demands of Catalonia do not admit any international mediation, and that an independent Catalonia should be automatically expelled from the European Union. The lesson has been stark: Europe is a union of states rather than a union of citizens, and therefore the rights of citizens depend on the agreements between existing nation-states. In the short term, Catalans can expect very little help, least of all from France, the key European neighbour, which for its own reasons abhors regional independence and which also has a Catalan minority in Roussillon. This does not mean that the European governments are happy with the intransigence with which Mariano Rajoy and the PP have handled this issue – repeatedly, there have been discreet demands for some political negotiation, and dislike for the scenes of police violence against voters has not helped. Nor is it the case that, had there been an officially sanctioned and agreed referendum, and had that led to a victory for Catalan independence, the position of the European Union would remain static: in fact, after international recognition it would make sense sooner or later to admit Catalonia, economically and geographically strategic, into the club.

Nonetheless, the Spanish state has the huge advantage of the status quo: no significant international recognition is likely unless there is de facto a functioning Catalan state. Even in this unlikely scenario, it would be a long time coming. The use of aggressive tactics by the Spanish state will increase sympathy for the Catalans in many quarters, but will not overturn the principles of the European Union, where the interest of the various states is stronger than democratic values, especially when their precise meaning can be contested.

Propaganda and fake news (fascism, racists, Nazis…)

One of the main symptoms of the political crisis has been the divergence in the way events have been reported in Catalonia and in other parts of Spain, especially Madrid. This is true despite the fact that there are various newspapers and TV channels to choose from: the interpretative bias in Catalonia is very different from the bias in Madrid, for example, and this affects the possibility of reaching a common understanding. When the news is so different, perceptions are naturally very different. Many Catalans feel that people outside Catalonia do not have the means of understanding the causes of this political crisis. Unfortunately, while access to online editions of newspapers should have helped build bridges, online commentary has become increasingly partisan and aggressive, and there is good reason to believe that much of it is politically orchestrated rather than a spontaneous reaction by citizens. A number of political insults – including the idea that demands for Catalan independence are rooted in racism, fascism or Nazism – have become prevalent despite their obvious inadequacy. Sadly, these terms – which obviously seek to delegitimize the opponent rather than to understand the roots of political dissent – are not confined to extreme groups, but can increasingly be found in mainstream media and political commentary. Combined with highly selective and often manipulative reporting, they testify to the fact that there is a war of words and images going on – one which accompanies the game of political manoeuvers, and which might lead to the justification of physical violence in due course. 

Whatever one might think about the appropriateness of a referendum on Catalan independence, Catalan political opinion is extremely diverse and nuanced, albeit usually on the basis of a rejection of the ideological legacy of Franco’s dictatorship. In fact, the cause of Catalan self-government has since the death of Franco (and indeed since the 1930s) been associated with the cause of democratic politics, and for this reason mainstream politics in Catalonia after 1977 has on the whole been imbued with pro-European and cosmopolitan values. There has been ample criticism of nationalist politics for generating simplistic us-them dynamics, but the defence of the Catalan language, or of Catalan self-government, is not identical to aggressive nationalism, and the movement for Catalan independence is also rather varied in its motivations and ideology. The opposite accusation, that there is a Francoist and ultra right-wing legacy in some of the manifestations of conservative Spanish nationalism, especially when targeting the idea of “Catalan Countries”, has greater plausibility (violence against Catalan sympathisers in Valencia for example is far from uncommon), but is also insufficient to explain the roots of the Spanish rejection of Catalan demands, as most Spanish nationalists today aspire to a modern democratic country integrated in Europe. The issue is therefore not about fascism or cosmopolitanism, but rather about ultimate political control: who is sovereign in Catalonia, the Catalans as a distinct political community, or the Spanish people as a whole?

Any hope?

As I write these lines, an imprudent unilateral declaration of a Catalan Republic, followed by the Spanish intervention of the Catalan Autonomy, seem imminent. Nobody should be happy about this. The Spanish state has the resources to crush the Catalan desire for independence, mobilizing, if necessary, the more extreme unionists within Catalonia in order to portray a clash between the Catalan government and the government in Madrid as a fight between Catalans (some commentators have written about ‘Ulsterization’ as a strategic option in order to weaken Catalan resistance). However, the more authoritarian the behaviour Spanish state, the less legitimate it becomes, prompting the consolidation and long-term growth of the pro-independence movement. 

Remarkably, the solution is obvious and has been proposed many times: a return to the spirit of compromise of 1978. This means urgent de-escalation, a rejection of unilateral decisions, negotiation of a new statute within a reformed constitution, and a series of referendums that might attract majorities both in Spain as a whole, and Catalonia in particular. This is of course a tall order and there is little popular mood to support it at the moment (although there have been many constructive and intelligent offers of mediation in recent weeks). However, this return to a spirit of compromise also seems the only path consistent with a peaceful resolution of the conflict in the short term.

Lack of reasonable compromise in my view will in the long term make a referendum more necessary, rather than less – and also more likely to succeed.

It is of course also the case that the Spanish will never willingly agree to Catalan independence, whatever the costs. So what we really fear is a long-term future of violence and divisions in what used to be a diverse, peaceful, prosperous and educated society. About three-and-a-half years ago I suggested, in an article in the Spanish newspaper El País, that, unless the Spanish government sought a negotiated solution, we might end up exactly where we now find ourselves. I wish I had been wrong then, and I fervently hope that I am wrong this time.

Published: 11 Oct 2017  Categories: Cultural Studies, History, Politics

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Joan-Pau Rubiés is ICREA Research Professor at Universiat Pompeu Fabra, Barcelona, where he directs the Research Group on Ethnographies, Cultural Encounters and Religious Missions. He was formerly Reader in International History at the London School of Economics.His publications include Travel and Ethnology in the Renaissance: South India through European Eyes, 1250-1625 (Cambridge University Press: Past and Present Publications, 2000)and Travellers and Cosmographers: Studies in the history of Early Modern Travel and Ethnology (Ashgate, 2007).