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Understanding the Catalan Conflict from a Spanish Constitutional Perspective

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These are the slides of the talk I gave at the University of Bristol Law School in the context of the Bristol Law Conference lecture series. The content is update as of 30 October 2017.

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Understanding the Catalan Conflict from a Spanish Constitutional Perspective

  1. 1. Understanding the Catalan Conflict from a Spanish Constitutional Perspective Dr Albert Sanchez-Graells 30 October 2017 (slides as of 15.20) Bristol Student Law Conference Lecture Series
  2. 2. Agenda • To provide an overview of the Spanish constitutional framework applicable to the Catalan conflict • To place the events of Sept-Oct 2017 in that framework • To debunk some myths and “sloganeering populism”
  3. 3. The general model
  4. 4. Spanish constitutional framework—basics I Spanish Constitution of 1978 (largely unreformed since) See G Padró i Miquel, ‘The historical roots of the Catalan crisis: How we got to where we are’, LSEEUROPP Blog, 19 Oct 2017, http://bit.ly/2yzUjjo
  5. 5. Spanish constitutional framework—basics IIOne people, one nation, one territory -> indissoluble unity BUT, several nationalities and strong devolution to regions, subject to solidarity Co-official languages (where used) See also Fact Sheet by Elcano Royal Institute, 17 October 2017, http://bit.ly/2yGes7q
  6. 6. Spanish constitutional framework—basics IIISpain is divided in 17 Autonomous Communities (AACC) + 2 Aut. Cities • Statutes of Autonomy • The Constitution foresees a competence split between central and autonomous governments, which is tailored to each region by its Statute of Autonomy
  7. 7. Spanish constitutional framework—basics IV Arts 148 and 149 SC1978 establish three types of competences • Exclusive of the State • Susceptible of adoption by AACC • Residual rules Constitutional Tribunal rules on conflicts
  8. 8. Spanish constitutional framework—basics V Commonly understood as ‘suspension of Autonomy’ Untested (until now) – both as to scope and enforcement No end-point, other than implicit restoration of the AC’s compliance with the Constitution and other laws
  9. 9. Current autonomy of Catalonia within the model
  10. 10. How does reality reflect the model? The system is dynamic and there have been significant transfers of competence from the State to the AACC over time • Catalonia started out with 89 competences in 1978 and by 2010, it had acquired a total of 274* • Current competential status: 276 [further detail in Catalan SoA] * Marcos, Santaló & Sanchez-Graells, ‘Measuring regulatory intensity by the Spanish Regions (1978- 2009)’ (2010) 4 InDret.
  11. 11. So how self- governed is Catalonia, then? (I)Maximum level of decision-making Second-to-highest level of competences Infograph by El País, based on L Hooghe et al, Measuring Regional Authority: A Postfunctionalist Theory of Governance (Oxford, OUP, 2016)
  12. 12. So how self- governed is Catalonia, then? (II)Maximum level of legislative power Maximum level of executive power Infograph by El País, based on L Hooghe et al, Measuring Regional Authority: A Postfunctionalist Theory of Governance (Oxford, OUP, 2016)
  13. 13. So how self- governed is Catalonia, then? (III)High level of taxation powers Moderate level of indebtedness power Infograph by El País, based on L Hooghe et al, Measuring Regional Authority: A Postfunctionalist Theory of Governance (Oxford, OUP, 2016)
  14. 14. So how self-governed is Catalonia, then? (IV)The number of civil servants and public sector employees clearly reflects the level of self-government Infograph by El País, based on the information in the central human resources register of the Spanish Ministry of Finance
  15. 15. A long(ish) view on current events
  16. 16. More Autonomy vs Independence (I) Source: CEO 2nd wave 2017, http://bit.ly/2yypsWU
  17. 17. More Autonomy vs Independence (II)
  18. 18. So, when did things start to heat up? 2006 New Statute of Autonomy – Subject to referendum • 2.594.167 [48.95 turnout] • 73.2% yes [35.7% census/ 27%population] 2006 Constitutional challenge of the new SoA 2010 Shaving by the Constitutional Tribunal 2010 (planned) Catalan regional elections 2012 (snap) Catalan regional elections
  19. 19. ‘Moderate’ Independentism? 2013 Decl. of Sovereignty & right to decide 2013 Via Catalana (Catalan Way) 2014 1st Illegal Catalan referendum (9N) • 2,305,290 [41.6% turnout] • 80% yes [33% census/ 30% population] 2015 (snap) Catalan regional elections
  20. 20. What happened in the last two months? 2017 ‘Disconnection laws’ • 6/9 Self-determination Referendum Act • 7-8/9 Legal Transition & Foundation of Republic Act [See Martí, ‘The Catalan Self-Determination Referendum Act: A New Legal Order in Europe’, Verfassungsblog, 17 Sep 2017, http://bit.ly/2ixs68J] 2017 2nd Illegal Catalan referendum (1O) • 2,286,217 [43% turnout] • Claim of 770,000 votes lost • 92% yes [38% census / 27% population]
  21. 21. The referendum itself Ugly, brutal police violence scenes However • Major issues with reporting by the Catalan Government itself (http://bit.ly/2gqWqgQ) • Even bigger issues with social media and fake news (eg use of old pics; http://bit.ly/2gdSOPN) • Mobs against the police in their accommodation and escraches to politicians not widely reported Source: Avui, http://bit.ly/2xV9R4a
  22. 22. What (else) happened in the last two months?3O General strike to reject violent police activity in the clamp-down of the vote 7O #parlem #hablamos 8O 1st Anti-independentism rally 17O Protest against the judicial decision to send Sanchez and Cuixart to prison 21O 2nd Protest asking for freedom for Cuixart and Sanchez + anti-155 decision 25O Pro-independence rally in Barcelona and student demonstrations through the week 28O Cancelled 2nd #hablamos #parlem demonstration 29O 2nd Anti-indepentism rally
  23. 23. Two King Speeches 3O First speech – call to stick to Constitutional order 20O Second speech – resolve to neutralise “unacceptable secession attempt” • Strongly supported by speeches from EU leaders present at the ceremony
  24. 24. In the meantime, away from the streets 10O Declaration of Pres Puigdemont in Catalan Parliament – Immediate suspension 11O Pres Rajoy demands clarification ex Art 155 SC1978 16O Puigdemont does not clarify position 17O Constitutional Tribunal quashes Referendum law 18O Rajoy offers exit via regional elections 19O Puigdemont does not provide any further clarification – threatens Parliamentary vote 19O Central Government activates Art 155 SC1978 21O Extraordinary Council of Ministers’ meeting
  25. 25. Measures proposed to Senate by Spanish Gov Autonomy not suspended, measures include • Replacing Catalan government • Potential regional elections within 6 months • Subjecting Catalan administration to direct ruling by Spanish central powers • Oversight over public media (TV3) • Catalan Parliament to continue operating, subject to direct ruling from Senate concerning new Catalan government
  26. 26. Catalan government’s reaction to Art 155 Decision Rejection of decision as “worse attack on Catalan institutions since Franco regime” and call for debate in Catalan Parliament Initial rejection of fresh regional elections, and subsequent backtracking—which triggered pressures from coalition partners (… “they treat us as a colony”)
  27. 27. The ‘Art 155’ week – A tale of two Parliaments • Mon: both Spanish Senate and Catalan Parls establish order of meetings • The ‘fight’ over Wednesday and Puigdemont’s ‘no show’ announcement • Thu: ‘In extremis’ written submission to Senate Commission, rumours of snap Catalan elections—postponed and eventually cancelled • Fri: vote on declaration of independence in plenary session at Catalan Parliament, and approval of Art 155 at plenary session of Spanish Senate within the hour
  28. 28. The #fakeDUI Approved by 70/135 votes, with over 50 MPs having abandoned the plenary in protest Significant concerns about the process (secretive but not secret) and the content of the vote, but clear act of disobedience regardless
  29. 29. Approval of #Art155 214/266 votes, with 47 nays and 1 abstention Introduced tweaks on measures proposed by Spanish Government – most significantly, no oversight/intervetion of Catalan public media* ‘Lightspeed’ publication in Spanish Official Gazzette
  30. 30. International reaction Source: Diari Ara, 28 Oct 2017, http://bit.ly/2ieJtYa
  31. 31. Does the constitutional framework help us make sense of this mess? Why the Central Government act the way it did? Why did the Catalan Government act the way it did? Why did the King act the way he did?
  32. 32. Criminal law ramifications
  33. 33. Criminal law ramifications Why are there so many (so few) criminal investigations going on? How are these criminal cases affecting political developments?
  34. 34. 9N (2014) 24 months due to aggravated disobedience coupled with illegal expenditure of public funds (€5.2mn), currently being dealt with by the Spanish Court of Auditors
  35. 35. Now, what? Everybody’s guess
  36. 36. The surprisingly quiet weekend No major events on Saturday Recorded video of Mr Puigdemont on Sat Newspaper column of Mr Junqueras on Sun
  37. 37. A choice of business as usual vs dirty tricks from exile? Some sacked members of Catalan Gov appeared for work on Monday Catalan Parliament accepted disbandment and stopped activity Mr Puigdemont and 5 others travel to Brussels via Marseille (amidst rumours of asylum applications)
  38. 38. Now, what? Immediate developments in context of criminal law cases likely to be problematic and potentially give rise to civic unrest Quo vadis Article 155 SC1978? New regional elections to be held on 21 Dec 2017
  39. 39. What may new elections bring? Extremely difficult to forecast but, if no surprises, likely to repeat 2015 results – but a break up of the autonomist/independentist front Could political parties be illegalised? How big a backlash would that create?
  40. 40. Q&A

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