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Catalan independence in the Spanish Constitution and Courts

Asier Garrido Muñoz


Following the recent ‘referendum’ and now declaration of independence, the status of Catalonia has become a hotly debated issue. As often happens in such cases, context is everything. It is not possible to appraise the perceived legitimacy of the respective claims without a clear picture of who says or does what in the particular legal environment (see mutatis mutandis the ruling of the Supreme Court of Canada on the secession of Québec, para. 155).

In the Spanish case, a significant part of such context has been shaped by the Constitutional Court. According to Article 1 of the 1978 Spanish Constitution, “national sovereignty belongs to the Spanish people from whom all State powers emanate”. Article 2 refers to the “indissoluble unity of the Spanish Nation, the common and indivisible homeland of all Spaniards” while it protects “the right to autonomy of the nationalities and regions of which it is composed and the solidarity among them all”. The capacity to hold referenda is regulated by Article 92 of the Constitution: they must be called by the King on the Prime Minister with regard to “political decisions of special importance” provided that it involves “all citizens”. A 1980 Law regulates in more detail the conditions for the holding of referenda in Spain. Article 2 thereof makes it clear that the decision to call for such a consultation is an exclusive competence of the State.

With respect to the status of Catalonia, the Constitutional Court rendered on 28 June 2010 what for many is the ultimate source of all the current political turmoil: the judgment on the constitutionality of the so-called ‘Estatuto de Cataluña’ (hereinafter ‘the 2006 Statute’), a piece of legislation regulating the exercise of regional powers whose adoption required consent by the legislative chambers in Madrid. An action to annul the statute was brought by ninety-nine MPs from the conservative Partido Popular against several provisions of the 2006 Statute, at a moment when the regulation of regional powers in Spain (commonly labelled ‘asymmetric federalism’) was the subject of reform by most regional governments – indeed, similar constitutional appeals were brought in parallel before the Court.

The judgment dismissed a great majority of the claims, but watered down (in some cases, annulled) certain provisions of the 2006 Statute. The provisions annulled concerned inter alia the creation of a so-called Catalan ‘Council of Justice’ (with certain powers regarding the organisation of the judiciary) and funding. Most provisions were nonetheless ‘saved’ by the Court by interpreting them in accordance with the Constitution. For instance, the statement made in Article 2.4, according to which “the powers of the autonomous community stem from the people of Catalonia”, was interpreted as an expression of the democratic principle enshrined in the Constitution. The term “national” used in Article 8 to qualify the symbols of Catalonia was considered equivalent to the term “nationality” appearing in Article 2 of the Constitution. The reference in Article 35 to a right to receive education in Catalan at schools and universities was declared constitutional inasmuch as Spanish is not excluded as a teaching language–even if Catalan becomes the “centre of gravity” of education in Catalonia. As to the preamble (which defined Catalonia as a “nation”), it was considered to have no interpretative value.

Other decisions have dealt with the so-called ‘right to decide’ of the Catalan people. For instance, judgment 42/2014 dealt with a resolution of the Parliament of Catalonia whereby it adopted a “Declaration of Sovereignty and a Right to Decide of the People of Catalonia” (which called on Catalan authorities to “initiate the process to exercise the right to decide so that the citizens of Catalonia may decide their collective political future”). Interestingly, this was not the first decision of this kind made by the Court. In 2008, it had ruled on the constitutionality of a Basque law calling for a referendum on self-determination in that region (which never took place). But unlike the Basque case, here the regional resolution did not rely on the right of self-determination of the Catalan people, evoking instead a more ambiguous “right to decide”.

The Court ruled that the proclamation in the Resolution of the sovereign status of the people of Catalonia violated the principles of unity and national sovereignty enshrined in the Constitution. At the same time, it did not declare unconstitutional the recognition of a “right to decide of the Catalan people”. Indeed, such a right–which does not have express recognition in the Spanish Constitution–was considered legal when exercised within the limits of constitutional reform processes, but that excludes the possibility of holding a referendum on independence before amending the Constitution. This solution left some constitutional space for the ‘right to decide’, albeit in a manner that clearly differed from the original intention of the drafters.

In what arguably will remain its most important decision on the legal status of Catalonia, the 17 October 2017 judgment 117/2017, the Court declared unconstitutional a law passed by the regional Parliament on 6 September 2017 calling for a referendum on self-determination to be held on 1 October 2017:

“[the law] annuls as a matter of fact, in the territory of Catalonia and for all Catalan people, the binding force of the Constitution, of the Statute of Autonomy and any other rules of law that may not be compatible with its will … The Chamber [the regional Parliament], in acting in this manner, has situated itself completely outside the law, and has entered into an unacceptable de facto territory … the existence and effectiveness of any rights that the Constitution and the Statute may protect in favour of all the Catalan citizens have been put in maximum jeopardy, thereby leaving them at the mercy of a power that affirms it has no limit whatsoever.” (ground 5.d, author’s translation)

The judgment further criticised the procedural irregularities leading to the adoption of the abovementioned law. In relation to international law, the Court criticised the references made in the preamble to the right to self-determination of the Catalan people. While acknowledging that “all peoples” have a right to self-determination, it referred to UN General Assembly resolution 1514 and Declaration 50/6 in support of the contention that such a right is limited to very specific circumstances and does not encompass a right to secession. In particular, it evoked the safeguard clause that protects “the territorial integrity or political unity” of states “conducting themselves in compliance with the principle of equal rights and self-determination of peoples and thus possessed of a Government representing the whole people belonging to the territory without distinction of any kind” (author’s translation). In another passage, it ruled that the Catalan Law further violated basic constitutional principles which are “at the same time common values of the EU Member States which underpin the EU itself” (author’s translation).

From the point of view of comparative constitutional law, the Court preferred not to evoke other authorities that may have further reinforced its findings. I refer here in particular to the abovementioned Québec ruling of the Canadian Supreme Court (particularly paras. 103-104), the sentenza 118/2015 of the Italian Corte Costituzionale (para. 7.2) dealing with the prospect of a unilateral referendum in Veneto, and the less elaborate (but no less authoritative) order 2 BvR 349/16 of the German Bundesverfassungsgericht concerning Baviera. This is to be regretted in a judgment of such importance.