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Catalan Independence: A constitutional challenge since 1975

Rob Shenk, 2010

Photograph: Flickr / Rob Shenk

On the 27th of September, the 11th Parliament of Catalonia (the region of which Barcelona is the capital) was elected amid a climate of polarisation surrounded by the issue of its independence from Spain. Together, the pro-independence parties Junts Pel Si (Together for Yes) and Candidatura d'Unitat Popular (Popular Unity Candidacy) won 72 of the 132 seats in the unicameral legislature of Catalonia. Shortly after, the parliament approved a resolution that marked “the beginning of a process of the creation of an independent Catalan state in the form of a republic”.

In Madrid, the ruling and opposition parties condemned the resolution, criticising its apparent illegality. Days after the election, the Prime Minister Mariano Rajoy stated that he would use “every legal resource” to stop the unilateral independence process launched by the Catalan Parliament. The central government soon put the matter of independence before the constitutional court. On November 11th the court deemed the restitution unconstitutional and therefore illegal. This gave Madrid the legal advantage. Yet even after the ruling, the Catalan parliament vowed to continue with the process. The central government's main argument against independence relies on the ruling of the constitutional court, whilst the argument for independence lies on the democratic mandate of the government of Catalonia. This has resulted in a crisis of legality versus legitimacy.

In 1978, three years after the death of dictator Francisco Franco, a new constitution was approved by a national referendum. It can be argued however that the constitution still suffers from structural hangovers from the Francoist state fabric. For instance the 155th article of the constitution outlines how the central government could use any required measures to ensure that an autonomous community acts in the best interest of the Nation. This clearly reflects the mindset of a different era, in which Madrid could use force to keep unity within its borders. In 2015, however, the use of violence in order to deal with the Catalan declaration of independence is politically unrealistic and legally unfeasible within the current context of Spain as a member of the EU.

To expand on this point, let's reflect upon theoptions that are available to resolve this issue. Firstly, there could be a referendum, similar to the one that took place in Scotland in 2014. This option, however, has been ruled unconstitutional. The second option is for Madrid to use force in order to keep unity, which is legally possible. This could be done either with the army being sent to take control of Catalonia, which is practically unthinkable, or by getting the National Police to arrest the leaders of the Catalan government for committing crimes against the constitution. The second option is more feasible but it would likely be labelled as antidemocratic, further alienating the Catalan population from the central Spanish government.

This shows that the problem of Catalan Independence lies in the legitimacy of the 1978 constitution and its ability to reflect the current political climate of Spain. The referendum is democratic but unconstitutional, whilst the forceful control of Catalonia may be constitutional but is practically inconceivable. If Spain wants to solve this issue in a peaceful and democratic way, it should reform its constitution and allow the people of Catalonia to decide their fate for themselves.

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