EU Domestic Policy

The Catalan Referendum Is Illegal – But Is There Any Other Way?

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The Spanish Guardia Civil has foiled the referendum, but the plight stands. With the central and the regional governments on a collision course, nobody knows what comes next.

On Wednesday, the Spanish Guardia Civil arrested the organisers of the illegal referendum on whether Catalonia should become an independent state. They stormed several administrative buildings following a court order and seized the instruments of the vote. That night, the Spanish PM Mariano Rajoy declared that the referendum could not materially be held, and called the Catalan leaders to negotiate on the status of Catalonia from the 2nd of October on.

The Catalan response has come on Friday, as the Catalan President Carles Puigdemont has announced that the referendum goes on; alledgedly, they already had contingency plans to make the referendum happen under any circumstances. The Home Office has reacted by sending in to Barcelona more members of the statal police, namely the Guardia Civil and the National Police.

The Catalan economy has already been intervened, as the central government has taken on direct responsibility on the execution of the budget approved by the Catalan parliament. As there is no economic provision for the referendum to take place, a strict observance of the dispositions makes the organisational costs -ballot papers, ballot boxes, electoral clerks, etc- impossible to assume.

On Saturday 23 September, the Spanish government has created a single police command for Catalonia, integrating the regional police in this sctructure alongside Spanish police forces under direct command of the Home Office. Under fears of the regional police not upholding the law, this move is de facto circumventing Catalan policing powers, with the presumable purpose of preventing the referendum from happening. As events unfold, it is very uncertain what may come next.

Article 155 of the Spanish Constitution provides for further intervention of the Catalan autonomy yet, giving the central government the right to bypass regional authorities in the observance of the law. It means an effective supression of the regional autonomy, and requires parliamentary support. However, this provision has never ever been used, as it seems as the last resort for the constitutional order to be upheld. Politically, it would be celebrated by the diehard separatists, for the eventual supression of the autonomy is expected to produce an uprising if not a rebellion.

Summarising, the recent events have been nothing but the strict observance of the law and the courts in a democratic country. What the justices have prevented is the first illegal seccessionist referendum in an EU member state; the law gives the central government the upper hand in this institutional clash. However, the political problem remains, as efforts from both parts to negotiate are nowhere to be found.

The story of the referendum, so far.

Catalonia held a plebiscitary election in September 2015. As it was made obvious that an independence referendum was not going to happen under the auspices of the Spanish government, the most prominent Catalan pro-independence leaders decided to form a single candidature and to campaign together on the single issue of independence, putting all their political differences aside.
That candidature was branded Junts pel Sí (JxSí, Together for Yes) and made out of the Christian democrats Convergencia i Unió (CiU, Convergence and Union) and the left-wing party Esquerra Republicana de Catalunya (ERC, Republican Left of Catalonia). They won 62 out of 135 seats, gathering the 39.59% of the ballots. Both parties are generally pro-EU and have veered off extreme or radical views in matters other than independence. They were not alone in the campaign for independence; the Candidatura d’Unitat Popular (CUP, Candidature of Popular Unity) was more vocal than JxSí in favour of secession. This overtly Eurosceptic, anticapitalist, socialist, and far-left party was backed by the 8.21% of the voters and obtained 10 seats.
The left-wing populist party Catalunya sí que es pot (CSQP, Catalonia yes we can) campaigned for the referendum. Having no official position on independence, they were voted by the 8.94%, and won 11 seats.
On the other hand, we had the constitutionalist parties. They opposed both independence and the referendum itself, being as bold as their adversaries. They are the liberal Ciutadans (C’s, Citizens), which won 25 seats and a vote share of the 17.9%; the socialdemocrat Partit dels Socialistes de Catalunya (PSC, Party of the Socialists of Catalonia), winning 16 seats and 12.72% votes; and, the conservative Partido Popular (PP, People’s Party), winning 11 seats and a 8.49% share of vote.

The aftermath of the election.

The result gave the pro-independence coalition a slim house majority. In spite of that, they fell short their declared goal of a ballot majority. Indeed, the JxSí parties had a solid majority in the house before the election. On top of that, JxSí and the CUP only agreed on the independence point, leaving an isolated executive on everything else. Even if both candidatures had the independence of Catalonia as the top priority, they did not even agree in the means for this end. Indeed, it was the CUP which imposed on JxSí a 18-month deadline for declaring the independence of Catalonia; and, Artur Mas, former President of the Catalan administration, had to leave office to fulfil one of the CUP’s prerequisites for a confidence & supply agreement. Indeed, both blocs have had a tense relationship; for example, the approval of the annual budgets has only been possible after a showdown.
Prime Minister Rajoy
If the referendum was the intent of the regional government, the Spanish Prime Minister Mariano Rajoy had very different plans. He belongs to the People’s Party, which has always been very bold on separatism: they will proactively fight it. This party has a very poor electoral record in Catalonia, which comes as no surprise in the light of their hostility to the Catalan degree of autonomy. They have repeatedly clashed on policies like tax administration, the role of the Catalan language, and the very basic law of Catalonia. Precisely, they brought the 2006 statute before the Constitutional Court chiefly because it defined Catalonia as a nation. In sum, this party opposes the very idea that Spain can be divided by any means.

The referendum.

Thus, the call for the October referendum could only lead to a standoff between the Madrid and the Barcelona governments. The call is illegal for a number of reasons; furthermore, it could only be debated in the Catalan house after a last-minute alteration of the agenda. Once enacted, the Constitutional Court swiftly repealed it, for referenda are a reserved matter of the Spanish government. Indeed, the Catalan administration did not even ask Rajoy, for his negatives have been bold and consistent throughout the years.
In spite of the prohibition, the Catalan authorities went ahead with their referendum plans. This is where complications arose: where would the vote be held, who was entitled to vote, and who was to organise the referendum were the most prominent sharp ends. With no support from the Spanish electoral authority, the Catalan government started up a parallel electoral authority. This authority was opposed by a number of towns, whose mayors would not cooperate with the referendum.
 The Catalan government had planned the vote to be binding. Should independence gather one more vote for than against, independence would be declared within two days, according to the repealed law. Beyond that point, the law also provided for Catalonia to assume the property of the Spanish state’s property in Catalonia, amnesty for those who helped the nationalist cause, the mandatory use of Catalan for all civil servants, and effectively suppressed separation of powers during the constituent period. It also mandated that independence be declared in case the referendum did not hold.
It is a remarkable fact that the parliamentary majority in favour of both the referendum and the secession bill would fall short of sufficing for making several types of reforms. For instance, any reform of the Catalan statute of autonomy requires two thirds (90 out of 135) of the Members of the Catalan Parliament voting in favour, as well as appointing the director of the autonomic public TV station requires a qualified majority.

How did we come to this?

In short, the Catalan identitary predicament is a fire both the Catalan and the Spanish administrations have been poring fuel onto.

CiU has ruled the region from the seventies until 2003, when PSC, ERC, and a minor leftist-ecologist party formed a coalition government. Back then, ERC had a more moderate approach to independence, though they were still bold on the Catalan identity. The tripartite government agreed with CiU a new statute for the Catalan autonomy, which was opposed only by PP on the basis that it defined Catalonia as a nation; the Spanish conservatives considered this as a project that widened the divide between Catalonia and Spain. Meanwhile, Catalanist parties regarded the statute as a hand extended to Spain; in their opinion, it satisfied many of their demands within the Constitutional framework.

The statute swiftly passed through the Catalan parliament with the sole opposition of PP in 2005. It had to be confirmed by the Spanish congress, where ERC withdrew its support to the project; it had become too little too late. In spite of  PP’s and ERC’s opposition, it was confirmed by the congress. A binding referendum was called to ratify the resulting statute, as mandated by the Constitution. After the favourable vote, the PP brought the statute before the Constitutional court to decide whether this already stifled statute matched the Constitution or not. In 2010, the justices ruled the most autonomist parts as unconstitutional, thus having them removed. Within two weeks, this decision was responded by the biggest nationalist rally up to the moment.

Since that year, the numbers of pro-independence demonstrators each 11 September (National Day of Catalonia) have been growing by the day. Three years ago, on 9 November, an informative consultation on independence was organised by the Catalan governmet. This was precisely an informal referendum that had no guarantee, where a third of the electorate turned out to vote in massive proportions for independence. However, this vote was more a festive activity rather than even a massive opinion poll, let alone a creditable referendum.

On a collision course.

Meanwhile, the Spanish government has responded by filing the appropriate lawsuits against the Catalan officials who were in breach of the law. Artur Mas, former President of the Catalan government, was no exception and has been suspended from public office by the Catalan High Court. Rajoy’s sustained attitude as Prime Minister has done nothing but pouring petrol onto the flames of Catalan separatism; however, he is being consistent with his party’s manifesto, where he pledged that the unity on the Spanish autonomous state and the Constitution of rights and freedoms grants the overcoming of break-away separatisms with clear and unequivocal will, and to take the unity of Spain as a matter of principle. While the manifesto is open to reform the Constitution, it made not less clear that they would not even consider negotiationg secession.

On the other hand, the Catalan attempts to negotiate have been bogus on purpose. When Madrid offered negotiation on fiscal and competential matters, Barcelona demanded an independence vote; one of the Mas’s and Puigdemont’s most repeated statements is that they would only enter a negotiation if it led to an independence referendum. When Rajoy invited Mas and Puigdemont to speak before the Congress, both have declined, for they wanted nothing but the referendum. To be fair, the referendum was anything but likely when Mas was invited in April 2014, for PP had a sweeping majority and an inexistent will to compromise on any matters. In contrast, Puigdemont was invited by a more plural Congress where that majority is no more, but he did not accept anyway.

Without any willingness to negotiate, the Catalan society has become more polarised on the sovereignty matter. Those who want independence are feeling outraged by Madrid and celebrate each legal disposition enhancing the Catalan autonomy; those who oppose the referendum are becoming more apathetic by the day, for they do not feel any need to decide on a matter that is clear to them. Many wonder whether these two halves of the Catalan society are already irreconcilable or they will be able to come together in the future, with or without independence.

The uncertain future.

At this moment it is unclear if the referendum will take place or not, and the latest news bring more uncertainty yet. The Catalan government continues enforcing the referendum act, despite its repeal by the Constitutional Court. Notably, the defunct act provided for independence to be declared in case the referendum does not take place, which indicates that the Catalan government wants independence at any rate. Whether the referendum is won by the yes side or does not take place, it is not recognised by the Spanish authorities; any declaration of independence would be unilateral.
The first thing an independent state needs to take is obtaining international recognition. At the end of the day, the potential of a non-recognised state is diminished by international isolation. It seems obvious that Spain would not recognise Catalonia in the first place, considering that Catalonia is part of the Spanish land. Different political leaders in the EU and the United States have repeatedly said that this is an internal Spanish matter, and they have equally showed their support for the member states constitutions. This can be easily read as a negative to recognise an independent Catalonia unless Spain did.

Would Catalonia be part of the EU?

JxSí, the leading pro-independence coalition, is in general pro-European. Indeed, they have reassured the Catalan people that an independent Catalonia would retain EU membership once broken away with Spain. Comparably, the CUP campaigned for independence on an overtly Eurosceptic basis, to break away with Spain and with the European Union they loathe.

Catalonia is a very pro-EU region, in similar numbers to the rest of Spain, and there is little doubt that it would seek immediate membership upon independence. However, it seems unlikely that the European Union uphold the Catalan stance. To begin with, EU membership is not granted to the land, but to states, and breaking away from a member means exit from the EU. Separatist leaders claim that Catalonia would immediately rejoin by reforming the treaties, but it needs the agreement of all the member states, including Spain. This is presumably unlikely.

What next?

The current situation is a kind of federal state where the regions may spend at will and have leeway for some taxes, but where all of them make huge contributions to the central government that redistributes the money. There are thirty-two reserved matters in Spain according to the Constitution, yet the same Constitution protects the rights of the regions to decide on the implentation, leaving room for very significative changes. Additionally, EU membership means that trade, fisheries, immigration, the environment, and parts of the civil law are shared with the EU. Thus, the central state has truly exclusive authority on defence, foreign policy, mining, and referenda.

It’s the economy, stupid!

This has resulted in a country where the rich regions perform excelently, most regions perform regularly, and the poor regions perform awfully. Indeed, those poor regions are perceived by many others, Catalans and non-Catalans alike, as a burden to the state of which many want to get rid of by acquiring more autonomy yet. On top of that, Catalonia has a sense of identity (separate to ones, compatible to others) that has helped many people distance themselves from Spain.
The main long-standing claim of Catalonia has been a new fiscal compact, which may be enacted without amending the Constitution. Furthermore, a Constitutional reform would allow for more competencies, specially regarding taxation, to be transferred to the regions. At this moment, the regions have been transferred a number of taxes; but, the sales tax, the income tax, and the corporate tax remain exclusive to the Spanish exchequer. This has effectively given the central state the upper hand, taking money away from the rich regions to be given to the poor areas.
More power means more responsibility. While Catalonia is ready to embrace more self-government, if not total independence, there are a number of underperforming regions in Spain which may not have the same appetite for more competencies.

There should be an answer.

No honest attempt to find a negoatiated way out of the Catalan predicament has been made up to this date. At this moment, there is a consensus that Spain needs structural reforms, for some regional administrations are very inefficient. In spite of that, Spain is a well-functioning state where the rule of law is observed. She has respected institutions, and an independent judiciary. It is right that there is a number of politicians on charges of corruption all across the map, and many citizens feel unrepresented by their elected representatives. Many are also prone to downplay their party’s corruption cases at the time they demand strict accountability on the adversaries’. Catalonia is not alien to this phenomenon.
The situation, however, seems less complicated than the Spanish transition was. In more difficult circumstances, a large coalition was built for the 1978 Constitution, and Spaniards voted for it en masse. Catalonia produced a 90% majority for on a 68% turnout. If the main political parties were able to sit at the negotiation table again, they would likely find the way to gather further support for a renewed project. This would not only improve the Catalan relationship with the Spanish government, but it could further cohesion between the different Spanish regions. Politicians should produce a political solution working on what unites their constituents, instead of insisting on what divides them.

Let it be!

The fact that the Catalan predicament seems at a standoff does not help resolve the matter politically. The Catalan position has been dismantled in the courts according to the law and the Constitution, to the contempt of many Catalans. They way forward is clear: reform the constitution and change the law. It requires political support, patience, and a lots of political will.
The Catalan administration has recurringly compared their situation with the Scottish case. As the above suggests, the differences have been huge, for neither Mas nor Puigdemont are Alex Salmond, and Rajoy is not David Cameron. It took four years since the Scottish election to hold the referendum, a new devolution settlement was negotiated, and the vote was held with clear rules. No legal authority was defied, nobody was intimidated to act either way. The Catalan vote bears no resemblance with this process, chiefly because both sides have sought immediate political gains in their polarising positions.
Maybe it is time for them to decide whether they want to win the next election or to be fondly remembered by the next generation.
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